Andrew Harnick/AP
President Donald Trump started the week with an early morning barrage of tweets criticizing the courts for blocking his executive order travel ban. But by doing so, it may have increased the likelihood that the courts would still block the ban.
People, lawyers and courts can call it what they want, but I call it what we need and what it is, a travel ban!
-Donald J. Trump (@realDonaldTrump) June 5, 2017
The Justice Department should have stayed committed to the original travel ban, not the watered-down, politically correct version it submitted to the Supreme Court.
-Donald J. Trump (@realDonaldTrump) June 5, 2017
The Department of Justice should request an urgent hearing for the softened travel ban before the Supreme Court – and seek a tougher version!
-Donald J. Trump (@realDonaldTrump) June 5, 2017
However, we do aggressively screen people coming to the United States in order to help keep our country safe. The courts are slow and political!
-Donald J. Trump (@realDonaldTrump) June 5, 2017
These tweets followed several tweets over the weekend about the ban and the terrorist attack in London, including this tweet from Saturday evening:
We need to be smart, vigilant and tough. We need the courts to restore our rights. We need a travel ban as an extra level of safety!
-Donald J. Trump (@realDonaldTrump) June 3, 2017
In January, Trump signed an executive order banning citizens of seven Muslim-majority countries from entering the United States for 90 days, as well as halting the refugee resettlement program for 120 days (and indefinitely for Syrian refugees). When the courts blocked the order, instead of appealing to the Supreme Court, Trump signed a modified version of the order. New ban He canceled the old decision, reduced the number of banned countries from seven to six, and added exceptions and exemptions. However, federal courts in Maryland and Hawaii have banned it, and now the Department of Justice has appealed to the Supreme Court to reinstate this second version of the ban.
The bigger question in litigation over the ban is whether courts should focus solely on the text of the order or also consider Trump’s comments during the campaign, and even during his presidency, to determine whether the order uses national security as a pretext to ban Muslims from the country. The president’s lawyers say the courts should focus on the letter of the order and submit to the president’s authority regarding national security. Trump’s tweets on Monday morning and over the weekend make it difficult for courts to justify doing so.
The travel ban is meant to be a temporary remedy until the government can review its vetting procedures. But Trump’s tweets show that the ban itself is his goal. Trump repeatedly uses the word “ban” when his administration has instead sought to describe it as a pause.
These tweets “undermine the government’s best argument, which is that courts should look no further than the four corners of the executive order itself,” Stephen Vladeck, an expert in national security and constitutional law at the University of Texas School of Law, said via email. “Whether or not Candidate Trump’s statements at the time mattered (a point on which reasonable people are likely to continue to disagree), the more President Trump says while the lawsuit continues and tends to suggest that the executive order is just a pretext, the harder it will be to convince him.” . Even sympathetic judges and magistrates who only care about the text of the order. Once the courts start looking into the president’s statements, it is not difficult to find statements that raise questions about anti-Muslim motives.
Even the president’s allies acknowledge that his tweets are a problem. George Conway, husband of Trump’s senior advisor Kellyanne Conway, He responded to Trump on Twitter by pointing out that the work of the Attorney General’s Office – which is defending the travel ban in court – has become more difficult.
These tweets may make some people feel better, but they certainly won’t help OSG get 5 votes in SCOTUS, which is what really matters. sad. https://t.co/zVhcyfm8Hr
– George Conway (@gtconway3d) June 5, 2017
Conway, who recently withdrew his name from his nomination for a position at the Justice Department, then went on to explain his position.
2) …and of course my wonderful wife. That’s why I said what I said this morning. Every sane lawyer in the World Health Organization and every politician…
– George Conway (@gtconway3d) June 5, 2017
3)…the Justice Department appointee agrees with me (as some have already told me). The point cannot be stressed enough that tweets regarding legal issues…
– George Conway (@gtconway3d) June 5, 2017
4) … seriously undermines the agenda of the Administrator and the President of the United States — and those who support him, as I do, need to reinforce this point and not be ashamed of it.
– George Conway (@gtconway3d) June 5, 2017
Trump may soon see his tweets used against him in court. Omar Jawdat, the American Civil Liberties Union attorney who argued the case before the Fourth Circuit Court of Appeals, He said the The Washington Post This morning the ACLU’s legal team is considering adding Trump’s tweets to its arguments before the Supreme Court. “The tweets really undermine the realistic narrative that the president’s lawyers are trying to put forward, which is that regardless of what the president has actually said in the past, a second ban is acceptable if you look at it entirely from his own perspective,” Jawdat said. mail.