British Prime Minister Theresa May has declared that she is prepared to dispense with human rights laws if they hinder her efforts to fight terrorism. The statement is a chilling example of how politicians are willing to take a hatchet to civil liberties and privacy in response to attacks. The more chilling fact is that many citizens will willingly part with their freedoms based on such promises of greater security. May has already pledged to curtail free speech on the Internet to fight extremists.
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. Continue reading
Albany Law Professor Stephen Clark has taken on case with truly heroic dimensions. Clark has challenged the decision of Alamo Drafthouse to hold showings of the movie Wonder Woman in a female-only event. Clark, 48, has said that as a gay man he is sympathetic with efforts to help disadvantaged groups, but he viewed the event as per se unlawful.
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.
We have previously discussed how politicians often attack free speech and other rights to show that they are “tough” on terror after attacks. Prime Minister Theresa May however may have set a record. May did not hesitate in immediately blaming the Internet and calling for government regulation of free speech to combat attacks like the one in London. Of course, if these terrorists were connected to ISIS (or inspired by ISIS), their extremism was not caused by free speech on the Internet. Indeed, the Internet often allows security to track extremists on the web.
One of the strangest aspects of the troubled start to the Trump Administration has been the role played by Trump’s own words in tweets and interviews. In both litigation and political settings, Trump’s own words have become the greatest liability for the Administration — undercutting allies and unraveling defenses. In the immigration order litigation, his controversial campaign statements have been repeatedly used as the determinative factor against his Administration in both the first and second rounds of litigation. His statements to the Russians and then his rather odd denial in Israel threw his Administration into downward spirals. Now we may see the creation of new precedent entirely due to Trump’s continued unguarded and unwise statements. Trump’s statements in interviews are the primary reason for the appointment of the Special Counsel after he directly contradicted his own staff on the reasons for the Comey termination. Recently, after the London attack, his Twitter statements caused an understandable outcry in Britain after he first tried to use the attack to argue for his immigration order and then attacked London’s mayor by misconstruing the mayor’s statement to the public. It is an incredible record. Absent these unguarded and ill-considered statements, Trump’s Administration would be in a far better legal and political position.
While the London tweets have been discussed primarily for their highly negative impact on people in Great Britain (of all parties), one tweet is equally problematic from a legal perspective. In his controversial tweet, Trump referred to his immigration order as a “Travel ban” — precisely what his lawyers have worked so hard to avoid before the Ninth and Fourth Circuits. As with his Comey comments, he is using the very language that his critics most wanted him to use. It is another example of sending months and hundreds of pages of argument only to be stymied by a mere 140 words.
In an interview on Good Morning America, White House Counselor Kellyanne Conway said that the decision had not been made whether the President would invoke executive privilege to bar former FBI Director James Comey from discussing his conversations with Trump regarding the Russian investigation. The invocation of executive privilege could raise some provocative and problematic issues for the White House. (For full disclosure, I taught Conway at GW law school).