This weekend I discussed how President Donald Trump’s own words had been the primary problem for lawyers seeking to advance his agenda. Trump’s comment and tweets have routinely undermined defenses and alienated allies. The column was prompted by Trump’s London tweets. While discussed for their triggering outrage across the political spectrum in Great Britain, one of the most controversial tweets also contained references to the immigration order as a “travel ban.” It was a remarkably ill-considered tweet. However, on Monday morning, President Trump doubled down and actually attacked his own lawyers at the Justice Department and directly contradicted their position in court. As I mentioned earlier, government counsel must feel like they have a daily Perry Mason moment with their client jumping up in court screaming incriminating things. The only logical conclusion that can be reached is that Trump really does not care if he wins the case. The problem is that there is a large and talented team at the Justice Department that is still laboring under the assumption that the President does want to prevail before the Supreme Court.
Trump blamed his attorneys advancing a “watered down” version of the controversial order. It is particularly weird since Trump signed the second version. It makes him look like something of an empty suit if he did not agree with the second version.
Just as the national security staff says that Trump blindsided them with his NATO speech, this appears to be case where the legal team was caught utterly unprepared.
The worst aspect of the tweet is that it plays directly into the hands of those challenging his order. During the recent litigation, the opposing counsel pointed out to the judges that the Trump campaign was still posting his pledge to impose a Muslim ban (a remarkably idiotic failure that was then embarrassingly taken down). That was less than a month ago. In trying to get a fifth vote on the Court, it is added baggage that government counsel simply does not need. Ironically, it makes more difficult the very thing that Trump was demanding: the reinstatement of his immigration order. It must be incredibly frustrating for his counsel who have insisted that his references to a “Muslim ban” during the campaign are immaterial to the executive order. It does not alter the core of the legal arguments, which I have long stated favor Trump. However, his reference to a ban (which the order is not) undermines the thrust of the arguments raised in courts across the country.
Now they have to wake up this morning to tweets that could have been written by their opposing counsel: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Trump wrote in the first of four tweets. “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C. The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!”
What is particularly odd is that the President waited for just before the Supreme Court would decide on the difficult question of an emergency order to unleash on his lawyers and deny that the order (and arguments) reflect his true thinking. We have never seen anything like this in an Administration where the president is routinely undermining his own lawyers and Administration through public remarks. There remains the question of what the White House Counsel is doing in this increasingly bizarre situation. It is the role of White House Counsel to help maintain the litigation posture for the White House and discipline in public statements. There is no evidence of any discipline whatsoever as the Trump Administration, again, appears the primary witness against itself.