President Trump unleashed a spasm of tweets Monday morning intended to defend his travel ban, but instead they may have undermined it as it faces legal challenges.
In his latest tweets, Trump referred to his revised immigration executive order as “the watered down, politically correct version” of “the original Travel Ban,” and wrote, “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!”
The new tweets probably weren’t a welcome sight to Trump’s lawyers tasked with defending the order, which the president has asked the Supreme Court to hear after being foiled multiple times by lower courts.
“I think he shot himself in the legal foot,” Cornell Law School immigration professor Stephen Yale-Loehr said simply.
Trump’s team has to argue that Trump’s executive order does not illegally target Muslims, and they can contend that any of Trump’s statements outside the actual text of the order shouldn’t matter before the court. But so far the courts have paid attention to Trump’s rhetoric, and White House officials have been frustrated by Trump's insistence on calling it a travel ban. White House spokesman Sean Spicer said in January the president had made "very clear that this is not a Muslim ban, it's not a travel ban. It's a vetting system to keep America safe. That's it, plain and simple."
“If the Justice Department succeeds in saying that nothing [Trump] has ever said before or after he’s president matters at all, then these statements won’t matter,” says Nancy Morawetz, who teaches the Immigrant Rights Clinic at New York University School of Law. “But I think it’s very hard to say that these statements do anything but hurt the government’s case.”
From when he was a presidential candidate and first proposed a “total and complete shutdown” of Muslim entry to the United States, throughout his first months as president, Trump’s own speeches and tweets have continued to contradict his aides and muddy the legal waters for his case.
“I think that any lawyer would say that the tweeting is not helpful, either for this or for anything else that involves a legal question,” says Morawetz. “Obviously, the president is making a political judgment.”
Even George Conway, Trump counselor Kellyanne Conway’s husband, agrees. “The pt cannot be stressed enough that tweets on legal matters seriously undermine Admin agenda and POTUS --and those who support him, as I do, need to reinforce that pt and not be shy about it,” the New York-based lawyer tweeted.
White House deputy press secretary Sarah Huckabee Sanders disputed that idea during a press briefing Monday afternoon. When asked whether the President is concerned his tweets could taint a legal case, she replied, "Not at all. The president is very focused on exactly what that order spells out, and that's protecting Americans, protecting national security and he has every constitutional authority to do that through that executive order. And he maintains that and that position hasn't changed in the slightest."
At issue is whether Trump’s inflammatory rhetoric outside of the actual text of the order demonstrates a discriminatory intent against Muslims. In May the 4th Circuit found that it did. The en banc ruling wasn’t directly about the travel ban; it was looking at whether a lower court acted improperly when issuing a nationwide injunction against the ban. But in doing so, the 4th Circuit had to consider the legal case against the ban, and the decision provides a window into how judges can see the President as his own worst enemy in the case.
In its 10-3 decision, the court explicitly studied the “backdrop of public statements by the President and his advisers and representatives” on the second executive order, referred to as EO-2. Writing on behalf of the majority, Chief Judge Roger Gregory wrote that any “reasonable observer” would find that the executive order’s “primary purpose is religious” based on Trump’s campaign statements.
“We need not probe anyone’s heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms,” Gregory wrote. “EO-2 cannot be read in isolation from the statements of planning and purpose that accompanied it, particularly in light of the sheer number of statements, their nearly singular source, and the close connection they draw between the proposed Muslim ban and EO-2 itself.”
The 4th Circuit scoffed at the idea that Trump’s revised executive order, which removed Iraq from the list of affected countries and does not explicitly apply to current lawful permanent residents and green card holders, has a different intent than the first, more sweeping EO. “Statements suggest that like EO-1, EO-2’s purpose is to effectuate the promised Muslim ban,” Gregory wrote, “and that its changes from EO-1 reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States.”
Now, lawyers working against the orders have even more powerful statements in their arsenal, with the president explicitly saying Monday that EO-2 is merely a tamer version of the first. A minor technical issue: Trump’s tweets from this week wouldn’t be part of the record on appeal. In other words, these tweets didn’t exist when the initial decision on the executive order was made, so any appeals court wouldn’t be able to consider them. But the Supreme Court could ask for supplemental briefing as to whether these statements could be used, or the plaintiff’s lawyers could file a motion to include them, which Yale-Loehr thinks would be likely.
Lawyers already involved in the cases took to social media happily Monday in the wake of Trump’s tweets, certainly implying that they’ll find a way to use his newest statements.
“Its kinda odd to have the defendant in HawaiivTrump acting as our co-counsel,” tweeted Neal Katyal, lead counsel in the Hawaii lawsuit challenging the travel ban. “We don't need the help but will take it!"
“If we just wait long enough, will he tweet out a whole brief for us?” tweeted Omar Jadwat, an ACLU lawyer who has argued against the ban. And the official Twitter account for the ACLU tweeted, "Yes, we may incorporate @realDonaldTrump's tweets about the ban into our Supreme Court argument."
Yale-Loehr thinks the president’s latest diatribe will make it even more likely the case gets its day before the highest court in the land. “The controversy is even higher now than it was before,” he says. “The [Supreme] Court I think will feel it has to weigh in.”