By Josh Gerstein
June 05, 2017
Prominent Republican attorneys are staging what amounts to a unprecedented public intervention against President Donald Trump, warning that his tweeting habit was doing serious harm to his bid to preserve his travel ban policy at the Supreme Court—and could be inflicting more widespread damage on his administration’s ability to carry out his agenda.
The outpouring of criticism was triggered by a flurry of tweets Trump sent early Monday, attacking the Justice Department’s legal strategy, dismissing his own revised travel ban order as a “watered down, politically correct” version of what he originally set out to do, and blasting as “political” the court rulings against him on the subject.
The most attention-grabbing pushback came from George Conway, who was under consideration until recently for a top post overseeing Justice Department civil litigation in the Trump administration. Conway, who is married to top White House adviser Kellyanne Conway, even seemed to mock one of Trump’s favorite Twitter formulations.
“These tweets may make some ppl feel better, but they certainly won’t help OSG [Justice’s Office of Solicitor General] get 5 votes in SCOTUS, which is what actually matters. Sad,” Conway wrote.
Conway later clarified that he remains a Trump backer, but is not backing down from his criticism. In fact, he insisted that lawyers currently in the administration concur.
“I still VERY, VERY STRONGLY support POTUS, his Admin, policies, the executive order…and of course, my wonderful wife. Which is why I said what I said this morning,” Conway added. “Every sensible lawyer in [the White House Counsel’s Office and every political appointee at DOJ wd agree with him (as some have already told me). The pt cannot be stressed enough that tweets on legal matters…seriously undermine Admin agenda and POTUS…those who support him, as I do, need to reinforce that point and not be shy about it.”
A top Justice Department official under President George W. Bush, Jack Goldsmith, unleashed a 17-entry Tweetstorm arguing that Trump’s ongoing attacks on his own lawyers and his apparent effort to disclaim responsibility for reissuing his “watered down” order are further eroding judicial deference for the executive branch.
“Given POTUS’s instability, it is not just courts that have reason to relax the presumption of regularity for this Prez,” wrote Goldsmith, now a professor at Harvard Law School. “We all have reason to do so about everything the Executive branch does that touches, however lightly, the President….One thing DT behavior entails…is many losses in court and not just on the immigration EOs….Everything else Executive would normally win—reversing Clean Power Plan, terminating treaty, new regs, etc.—will be much, much harder.”
Lawyers challenging Trump’s travel ban in court seemed gleeful at the utterances from the chief executive.
“Its kind of odd to have the defendant in Hawaii v Trump acting as our co-counsel. We don’t need the help but will take it,” wrote Neal Katyal, a lawyer behind the State of Hawaii-led case that resulted in the broadest injunction against Trump’s revised travel ban.
Supreme Court litigators said Trump’s tweets were particularly damaging because the Justice Department has argued that the revised order Trump issued in March should be treated as distinct from his first effort and from his campaign trail rhetoric calling for a ban on all Muslims entering the U.S.
Government lawyers have also insisted that the second order was backed by a policy process involving Cabinet officials such as Attorney General Jeff Sessions and Homeland Security Secretary John Kelly.
However, Trump’s reference to political correctness seemed to fuel arguments that the alleged policy process was window dressing and the entire effort may have simply been intended to follow through on his calls for a Muslim ban.
“They’re trying to draw a sharp line between this order and his campaign statements that all Muslims should be barred,” said Walter Dellinger, who was an acting solicitor general under President Bill Clinton. “Trump has rendered moot the debate in the litigation over whether campaign statements should be inadmissible by incorporating by reference all those statements and turning them into presidential proclamations.”
“People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” President Donald Trump tweets.
Dellinger added that the tweets will be “devastating” to the solicitor general’s office, which last week asked the high court to lift injunctions on the president’s executive order: “Either they have a client who can’t control himself or a client who is trying to sabotage the case.”
A Justice Department spokeswoman had no comment on the president’s criticism of the department.
The revised order Trump signed in March places a 90-day freeze on issuance of visas to citizens of six majority-Muslim countries and suspends refugee admissions from across the globe for 120 days as part of what was billed as an attempt to ward off the threat of terrorism.
White House spokeswoman Sarah Huckabee Sanders said Monday that Trump moved to the second order as a matter of “expediency,” after the courts blocked his first foray.
“They were trying to meet the demands of the 9th Circuit,” Sanders said. “He wants to go as far and as strong as possible under the Constitution to protect the people in this country. That’s what he felt the first executive order did. The second one was another version of that… Everyone wants to make it something different than a national security issue, but that’s exactly what it is.”
Sanders did not explain why Trump did not take the fight to the Supreme Court in February. She did say she was not aware of any mechanism whether aides or lawyers review Trump’s tweets before they’re issued.
“It gives him the ability to make directly to the people without the bias of the media filtering those types of communications,” she said. “I think it’s a very important tool for him to be able to utilize.”
While administration lawyers have described the revised order as a “temporary pause,” Trump on Monday called the measure a “travel ban”—a phrase his aides have sometimes eschewed, but which he has repeatedly embraced.
“I don’t think the president care what you call it, whether you call it a ban, whether you call it a restriction. He cares that you call it national security and that we take steps to protect the people of this country,” Sanders said in response to a reporter’s question Monday. “It’s real simple. Everybody wants to get into the labels and the semantics of it but the bottom line is he’s trying to protect the citizens of this country and this executive order is very clear and the president’s priority in protecting the American people is very clear. Full stop.”
Not all lawyers viewed Trump’s tweets as damaging to his case.
Former federal judge Michael McConnell, an appointee of President George W. Bush, said Trump’s indication that he is dissatisfied with the current travel ban order actually supports the government’s arguments that the new order is not a product of the comments about Muslims Trump made during the campaign.
“The best hope for the government to prevail has always been that the executive order stands for what it says but not for what the president might have subjectively intended,” said McConnell, now a law professor at Stanford. “For the president to be expressing disappointment might actually strengthen that position… He has now, in this very backhanded way, affirmed that this does not have the kind of discriminatory character he was talking about.”
McConnell did, however, concede that Trump’s tweets were so unorthodox that they could not have been part of an actual legal strategy.
“You can be pretty sure his lawyers didn’t approve these tweets,” the former 10th Circuit judge said. “This must be very aggravating for his lawyers.”
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