How Trump just completely undermined the legal argument for his travel ban, in 4 tweets
Yet another morning, yet another instance of President Trump’s Twitter account undermining his own administration.
This time, the four tweets he sent early Monday morning could actually make one of Trump’s top priorities much more difficult to see to fruition: Getting his travel ban reinstated by the Supreme Court, which the Trump administration has asked the court to do sooner rather than later.
How? Let’s take the president’s four travel ban tweets one by one.
This is the first of several times in Trump’s series of tweets that he’s going to call into question courts’ judgment and authority. It’s something Trump does almost every time a court rules against one of his initiatives, and it’s a practice that even the person he picked for Supreme Court, Justice Neil M. Gorsuch, said was “disheartening” and “demoralizing.”
Courts are made up of people, too, and some legal scholars think that in antagonizing them, Trump risks inviting even more legal scrutiny on the intentions of his ban.
“The justices will likely feel an instinct to protect their institution,” said Austin Evers, director of the government corruption watchdog group, American Oversight, and a former top State Department lawyer. “And to assert their coequal role in upholding the Constitution.”
Next problem with this tweet: the word “ban.” It’s been used by Trump’s campaign and associates immediately following the word “Muslim.” When he was campaigning, Trump proposed a “total and complete shutdown of Muslims entering the country.” As recently as February, Trump’s “statement on preventing Muslim immigration” was still on his campaign website. (It’s since been taken down.)
Top Trump officials, like press secretary Sean Spicer and counselor to the president, Kellyanne Conway, have repeatedly asserted Trump’s travel executive orders are not a “ban,” because they know the word draws connections to Trump’s religion-focused rhetoric on the campaign trail. But here the president is using it, in all caps no less.
Okay, next tweet.
Central to travel ban opponents’ legal arguments is that Trump is trying to ban Muslims from the country, which most courts would agree is a discriminatory policy that violates the Constitution’s freedom of religion.
Google News, Bing News, Yahoo News, 200+ publications
No court has actually decided on whether Trump’s ban is discriminatory. Judges have looked at whether there’s a reasonable legal argument to pause it while the discriminatory question gets worked out; most decided there is reason to pause it.
But when it comes to questioning the ban’s intent, several courts, including two of the highest courts short of the Supreme Court, have said Trump’s words are fair game for the other side to use as evidence.
That, ostensibly, means his tweets, too. And there, Trump’s words and his policies don’t always match up.
Let’s take these tweets. The travel executive order Trump signed — especially the second one — called for temporary travel restrictions for some people from six Muslim-majority countries, not a total travel ban.
As for implying this travel ban is too “politically correct?” Evers said it will be up to the courts to decide what Trump meant by that. If Trump is concerned his executive order is too “politically correct,” then where does he fall on religious discrimination? Given all Trump’s campaign rhetoric, Evers said it’s a fair question.
“& seek a much tougher version” — see above for why that’s problematic. Even the White House tacitly acknowledged the first version of Trump’s travel ban went too far (at one point, it seemed as if green-card holders from seven majority-Muslim countries weren’t allowed into the United States) when it drafted a second one rather than fight the first’s court battle.
But Trump is distancing himself from the lawyers who will be arguing on his behalf. He seems to disagree with his own Justice Department’s legal strategy — and the actual travel ban that they are arguing for. (A travel ban that has Trump’s signature on it, BTW.)
From there, it’s fair game for justices to ask whether Trump’s lawyers are really representing the president.
“I think he is kneecapping his lawyers in the Department of Justice,” Evers said.
This war of words between Trump and his administration has played out before.
In May, Trump fired his FBI director, then completely undermined his administration’s arguments for why. (Vice President Pence and others said it was because of James B. Comey’s handling of the Hillary Clinton email investigation; Trump said it was “that Russia thing.”)
At one point, a reporter asked deputy White House press secretary Sarah Huckabee Sanders whether journalists can even trust the information from White House press briefings anymore, given nearly everything they said about Comey’s firing was undercut the next day by the president.
Here we have yet another direct shot at the courts. And yet another opportunity for the courts to exert their independence from a president who seems intent at chipping away at it.