Transgender Tweets: Trump Tweet Relied Upon By Another Federal Court In Ruling Against Administration

We have previously discussed how President Donald Trump has repeatedly been used by federal courts as the most important witness against his own policies due to his ongoing and ill-advised tweets.  Indeed, in all three rounds of the immigration litigation, Trump’s tweets and comments were critically important to courts in ruling against his Administration, including the most recent injunction rulings of the third travel ban order.  Now a judge in Washington has relied on Trump’s tweets to rule against him on his ban on transgender military personnel.  Judge Colleen Kollar Kotelly of the US District Court for the District of Columbia in Jane Doe v. Donald Trump (pdf), found that the plaintiffs were “likely to succeed” on their claims that the ban is discriminatory. The court decision, again, features a Trump tweet.

I have been critical of the President’s continued use of twitter to discuss the Russian investigation and pending litigation in various areas.  The practice may be working politically (there is some disagreement on that point given dropping polls even among Republicans), but it is extremely damaging legally.  Yet, courts have cited Sean Spicer’s poorly considered statement that Trump tweets are “official statements by the President of the United States.”

The court in the transgender case noted that the change in the policy was not launched in a deliberate, administrative process out of the agencies, including the Defense Department, but with a tweet that clearly took the agencies (and cabinet members) by surprise.  Trump’s announcement of a ban on transgender soldiers in the military hit like a thunder clap and left defense officials openly confused and surprised by the news in July.

Many transgender service members identified themselves to their commanding officers in reliance on that [Obama administration] pronouncement. Then, the president [Trump] abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.

Then, the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977) (holding that “[t]he specific sequence of events leading up the challenged decision . . . may shed some light on the decisionmaker’s purposes” and “[d]epartures from the normal procedural sequence also might afford evidence that improper purposes are playing a role”).