Supreme Court Deliberates As Trump Becomes Witness Against Himself

donald_trump_president-elect_portrait_croppedTwitter LogoBelow 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.

Robert_Horton_Ward_Bond_Wagon_TrainThe 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.

32 thoughts on “Supreme Court Deliberates As Trump Becomes Witness Against Himself”

  1. A friendly reminder, if you’re rooting for Trump to fail, just remember, you’re on the boat as he. He may have the best seat on the boat, but you’re a lot closer to the water, and those lifeboats aren’t there for you.

    None of us fail as much as all of us FAIL. Check this out this genius

    Carry on.

  2. The ASG team really botched the TRO phase of the challenge by neglecting to enter into the record documentation of the threat our country is facing from radical Islamists. The many Fatwas calling on Muslims to kill Americans as matter of religious duty belong in the Trial Record, so that the jurists cannot easily blow-off the argument that Trump just became anti-Muslim at some point for no good reason. This is what they’re trying to argue. It is easily deflatable with facts documenting the past and future threat, making its connection to a branch of Islam (Sharia Islamism), and demonstrating that religious identity does not shield someone to attack Americans….there are limits to the 1st Amendment separation of church and state, namely defeating militants whose goal is to impose Sharia (cohesion of church and state) on America in violation of the 1st Amendment.

  3. All these investigations will come to naught. Any crimes committed by DJT will be pardoned by President Pence.

  4. Let’s see if the Supreme Court will consider the language of the EO and the authority of the office. They would need to step outside of the law to also consider anything else. You don’t have to like the person or their beliefs. The concern should be if he is acting within his authority to do what he was elected to do. Isn’t that what the law is about?

    1. It’s about a lot of stuff, and Trump is failing miserably in just about everything. In the end, in America, the President is an elected King or Queen. Americans are more addicted to tradition as part of their government than almost all other nations. Great Britain realizes where tradition should be an places it there for the tourists. Parliament is democratic and closely responsible to the people. There is little royalty in Parliament. With the Presidency the US maintains a sovereign ruler of sorts. This is one problem. The other is almost if not all politics is oligarchically driven in the US. Without the concentrated funding the US could be on its way to a democracy. As it is now, it’s the ilk of Trump and the rest. Unfortunately there are too many Americans who believe that anything the US does is somehow determined from above, from something sacred, like the President. We need to rethink.

  5. The tweets are good. Little by little Trump is exposing his mental instability. Turley gave him more than an even chance at first but only the super dupes can stay glued to this maniac now. You can hear the plopping as the Trump believers become unglued and hit the ground, like so many fat, swollen, rotten, figs.

  6. Umm, like it or not, the Constitution says “CONGRESS shall make no law [regarding religion]…”. It says NOTHING about the president making such declarations. It would be illegal for Congress to make Christmas a holiday, but not for the president to declare it as such. Same applies here. Somehow this fact seems to have been lost on judges (and other members of society) who would rather interpret the Constitution (that they swore to uphold and defend) the way they wish it read rather than how it does read.

    1. James, good points. Far too many in govt let the ‘prohibiting the free exercise thereof’ regarding religion go unchallenged. They let those who oppose any public expression of religion off the hook. Communities can have manger scenes, crosses, public prayer & so on but the bans against freedom of exercise is going pretty much unopposed by most in all levels of govt. .

      Like you said, ONLY Congress is mentioned in the Constitution. Not towns, cities, religious groups, high school’s athletic games or any one else. Just Congress.

      Odd. Where is the ACLU or atheist groups when school children are indoctrinated into Islam?


    2. James,

      Before you get on your high horse and chase Napoleon, you you might want to consider that that the Constitution expends much more effort in empowering Congress over the executive branch—fifty-three Clauses enumerating congressional authority vs. four Clauses defining executive authority.

      In the four Clauses defining executive authority, two have led to much contention; namely Clause 1 and 2 of Section II which respectively state that the president is the Commander-in-Chief of the Army and Navy, and, that with the advise and consent of two thirds of the Senate has the authority to make treaties.

      It is only through historical judicial precedent and statutory laws that the tension between congressional powers and executive powers has been addressed, and this tension has existed from the early days of the republic.

      As early as 1795, “the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.”

      1. Damn a real and litereate post. With sources. I’m shocked but thanks for that contribution.

        1. Yes, polite, literate, and with sources, but off topic. The issue is what the Constitution says, not what some people wish it said, or how foolish judges have ruled over the years.

          1. Perhaps you didn’t read the first paragraph, James.

            Perhaps you are unaware of how the Constitution grants Congress the ability to pass legislation amongst many other powers.

            I’m tired of, “but it’s not in the Constitution” arguments, ignoring the body of USC and the processes used to arrive at said.

            1. I’m tired of, “but it’s not in the Constitution” arguments, ignoring the body of USC and the processes used to arrive at said.

              But of course, who needs to reference that pesky constitution thingy when other processes have been used to create volumes you call the USC. Just to be clear for you people that are tired of the constitutional argument: you have absolutely no grounds to whine and complain when this monstrosity of a government creates other processes to craft more laws and regulations that don’t suit your worldview.

                1. Sorry it’s taken me so long to respond, I was in the middle of a beer pong game with my bros.

                  Anyway, done. Read it again. Just to be clear, it says:

                  Perhaps you are unaware of how the Constitution grants Congress the ability to pass legislation amongst many other powers.

                  So we have the USC and the constitution. Yada Yada Yada. If everything the Executive and Legislative branches did was consistent with the constitution, then there would be no need for the Judicial branch. This massive bureaucratic state is not a reflection of powers properly granted, it’s a reflection of powers assumed. And that has largely been because an ignorant, apathetic and dependent citizenry did not do their job of complaining. We don’t need less of it, we need more of it.

                  Now, I’ve gotta go, it’s my turn to do a keg stand.

                2. Mr. Steve H., we’ve read what you’ve written and aren’t impressed. You mentioned Napoleon. You could also have mentioned Rodrigo Duterte of the Philippines, who was trained as a lawyer, or even better, Barack Hussein Obama, Jr., who was a professor of Constitutional law before he came to power, promising to be the most open administration in history, yet now we know even more clearly that his administration was anything but that. Yeah, they say power corrupts, but I tell you, the corruption was usually already there, lurking, waiting to be expressed.

                  Yes, it is of some interest *how* such people—I suspect you too—use mountains of verbiage to try to make the Constitution not say what it says, or to say what it does not, but I’m more concerned with the fact that such sophistries happen in the first place and with what the Constitution itself says. Although I have a doctorate, I’m very glad higher education isn’t needed to understand what it says. I’m glad that the Constitution was written at a grade school level. And just to remind you, apart from banning religious tests for federal office, there is NOTHING in it that would prevent the executive branch from declaring that Christmas or Easter should be a holiday, or that would prevent Mr. Trump from the ban that foolish judges find unconstitutional, even though it’s nothing of the sort. Are you unaware that we’ve been discriminating against people of certain BELIEFS for decades? Yep, that’s right; if you’re a Nazi party member or a Communist party member, you’re not allowed in—not because of what you’ve done, but because of what you BELIEVE. Read up on it at the USCIS or Dept. of State websites.

      2. Thanks for the comment, but it is a change of subject from what I wrote with regards to the relationship between the Constitution and religion.

        1. So the thread should follow your thought only? No discussion of your shallow example in a broader context?

          You want more executive orders? You will get your Napolean, just wait a little longer.

    3. Nonsense. The president executes the laws that derive from Congress. I’m pretty sure there was much whining about Obama overreaching and bypassing Congress not too long ago.

      The Pizza Hut spokesman melted when he blathered about “opening up libel laws”, to sue outlets with which he disagreed, and he was rightly mocked per usual: for all presidents like Congress are equally limited by the First Amendment (and the Constitution entirely).

      1. Didnt seem to stop OBama nor nor the Democrats. They just ignored it and used Obamapenmanship. Worked so well their RINO faction followed …or was it caved as well.

  7. The Executive Order (second one) is very limited in scope. Compare it with the action taken by FDR in the days following Pearl Harbor. Concentration camps were set up to confine Japanese folks, some of whom were born in the U.S. to parents who were citizens. Read Korematsu before you consider all this blather about Trump and his words of non wisdom. If the Supreme Court overturns Korematsu then we will be in for a world of hurt and terror.

        1. And as we Americans are wont to say, “You made your bed, now you must lie in it.” Filling your country with millions of Muslim refugees…..gee, what could possibly go wrong?

        2. As we say you made your bed you lay in it. Two generations you will be a Muslim country under sharia law they will out breed you. You deserve what you get and now you might elect labor.

      1. David B, yes he is. And he should be. Judges who ignore the Constitution & anoint themselves activists make me mad as well.

        You are the one that’s unhinged. I take it you have yet to research stealth Jihad, Muslim Demographics, honor killings on the rise in the USA, support of US Muslims for sharia law…

        Mr. Trump wants to end the threat Muslim terrorists bring with them. And you call him mad. You’re the one who is nuts!


    1. Mental Acuity. He also has a problem in in his role playing. For a while there I thought he was usurping the Prime Minister and the Queen two heads of state from his role as a mere Mayor. of city presumably in one of the provinces. One may insult the Prime Minister but never the Queen. It isn’t done don’t you know.

      Chelmsford Essex 1945. Half Pommy and half Yank an Ozzies worst nighmare outside of a Kiwi. .

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