Below is my column in The Hill Newspaper on the impact of President Donald Trump’s latest tweets on the pending motion and appeal before the United States Supreme Court. My view expressed in the column is apparently shared by George Conway, the husband of Trump Adviser Kellyanne Conway. He tweeted “These tweets may make some people feel better, but they certainly won’t help (the Office of the Solicitor General) get 5 votes in SCOTUS, which is what actually matters. Sad.” Conway was once believed in line for a position as Assistant Attorney General. He has now decided to stay in private practice.
It’s another Monday in Washington and the White House is back in crisis mode. Of course, the Trump staff is not the first White House to have to pull their wagons in a circle at dawn to fend off an attack. What is different is that it is the president who is riding around and shooting at them.
President Trump began the week with another tweet storm but shocked many by attacking not Democrats or NATO or his other usual targets but his own legal staff. Trump unleashed on his own Justice Department and directly undermined its lawyers’ arguments on the immigration order before the United States Supreme Court — on the very eve of a critical decision on an emergency appeal.
The tweets could not have been written for better effect by the opposing counsel in the immigration case. For those of us who grew up loving Wagon Train with Ward Bond, it was like the Native Americans watching confused from nearby hilltops as Major Seth Adams rode around his own wagons shooting at the settlers.
Let’s put this in perspective. For many months, the Justice Department has been arguing that the immigration orders (both the first and the revised orders) are not bans but orders imposing limited and temporary travel restrictions on a small number of countries. The main witness against the DOJ has been Trump himself.
Opponents played Trump’s various promises during the campaign to impose a “Muslim ban” and judges relied heavily on Trump’s statements to enjoin both the first and second orders. They refused to simply read the orders on their face when the president was saying directly contradictory things publicly in linking the orders to a ban on Muslims.
The immigration order is technically not a ban since it is meant to be a temporary restriction pending new vetting procedures. Yet, 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 hurriedly taken down). That was less than a month ago.
Then Trump used the London attacks to call for the reinstatement of his “travel ban.” Many of us remarked that it was a highly ill-considered statement on the very eve of the Supreme Court considering an emergency motion from his administration. 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. In an appeal where the central issue is the disconnect between what the order says and what Trump intends, the tweets could not come at a worst time.
Then, as is often the case, it got far, far worse. On Monday morning, Trump unleashed criticism of his own administration and his own lawyers. 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.
He also not only referenced the Supreme Court review but demanded that the Justice Department “seek much tougher version!” For good measure, Trump added his signature attack on the courts as “slow and political.”
Thus, to sum up, his own lawyers are not representing his views or the nation’s interests and the courts are slow political hacks.
Of course, federal judges are trained to maintain an objective and dispassionate view (even when they are being repeatedly insulted by the party seeking relief in their court). Having Trump inartfully refer to the order as a “ban” should not change the legal analysis on his inherent authority in the area. It could be viewed as a temporary ban on travel without being a “Muslim ban” or an act of religious intolerance. Moreover, the law still favors the administration.
The Fourth Circuit decision under review declined to review the order on its face and instead imported various statements from Trump on the “ban” to rule that the order was an infringement of the Constitution’s protection from religious discrimination. I believe that the court took liberties with existing precedent, particularly a case line following Kleindienst v. Mandel. That case involved a demand a non-immigrant visa for a Belgian Marxist journalist.
The visa was blocked under a law barring those who advocate or publish “the economic, international, and governmental doctrines of world communism.” The court held that “when the Executive exercises [its] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.”
The irony is that the administration had finally assembled an excellent legal team, and they are finally before the Supreme Court where they could expect greater support for upholding Mandel. That is precisely the time that Trump chose to attack his legal team and their arguments. In the end, the Supreme Court could (and should) ignore the president’s tweets, but it is increasingly hard when he is drowning out the voices of his own counsel.
One obvious conclusion is that Trump actually does not care if he prevails before the Supreme Court. He could view a loss as more valuable politically in fulfilling his narrative of political or obstructionist courts. The problem is that he has a team of lawyers still laboring under the assumption that he actually wants to win. After all, these losses have curtailed inherent authority not simply for his administration but future presidents.
Yet, hundreds of pages of legal argument by the Justice Department may not be able to withstand arguments made in 140-word increments by a president who seems to want to be an outsider in his own administration.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.