Trump’s scathing tweets un­der­mine Jus­tice ar­gu­ments for travel ban

The Washington Times Daily - - FRONT PAGE - BY AN­DREA NOBLE

Pres­i­dent Trump made his ad­min­is­tra­tion’s de­fense of his pro­posed travel ban tougher Mon­day, le­gal an­a­lysts said, after a se­ries of early-morn­ing tweets blast­ing his own at­tor­neys and their de­fense of what he called a “wa­tered down” and “po­lit­i­cally cor­rect” ex­ec­u­tive or­der.

Mr. Trump also said he wished the Jus­tice Depart­ment had de­fended his orig­i­nal travel ban — which he him­self re­voked after sev­eral court re­bukes.

It’s the lat­est ex­am­ple of the pres­i­dent trip­ping over his own words in the case, dat­ing back to his orig­i­nal call for a ban on Mus­lims be­ing al­lowed to en­ter the U.S. Judges have re­peat­edly cited his com­ments as ev­i­dence of an­i­mus to­ward Mus­lims, and used that as the ba­sis to halt his travel ban.

Mr. Trump gave the courts and his crit­ics still more am­mu­ni­tion this week, mock­ing his own March 6 ex­ec­u­tive or­der as “wa­tered down” and “po­lit­i­cally cor­rect.” He urged lawyers at the Jus­tice Depart­ment to in­stead seek en­force­ment of a stricter ver­sion of the travel ban — akin to the orig­i­nal Jan. 27 or­der that Mr. Trump him­self nixed — as they take their case to the Supreme Court.

“The Jus­tice Dept. should ask for an ex­pe­dited hear­ing of the wa­tered down Travel Ban be­fore the Supreme Court

- & seek much tougher ver­sion!” Mr. Trump wrote on Twit­ter early Mon­day. “In any event we are EX­TREME VET­TING peo­ple com­ing into the U.S. in or­der to help keep our coun­try safe. The courts are slow and po­lit­i­cal!”

His tweets came as he was re­spond­ing to the lat­est ter­ror at­tacks in Lon­don.

The White House in­sisted that the pres­i­dent sup­ports the up­dated March pol­icy, which was rewrit­ten to cor­rect prob­lems that the courts iden­ti­fied in the orig­i­nal travel ban.

“He wants the strong­est ex­ec­u­tive or­der out there, and he wanted to move as quickly as pos­si­ble,” said White House deputy press sec­re­tary Sarah San­ders. “He’s try­ing to pro­tect the cit­i­zens of this coun­try. The need for this ex­ec­u­tive or­der is very clear. Full stop.”

Le­gal schol­ars said Mr. Trump’s com­ments could se­ri­ously dent his case by un­der­min­ing the le­gal ar­gu­ments that the Jus­tice Depart­ment has been us­ing.

“The worst as­pect of the tweet is that it plays di­rectly into the hands of those chal­leng­ing his or­der,” Jonathan Tur­ley, a Ge­orge Wash­ing­ton Univer­sity Law School pro­fes­sor who has been watch­ing the travel ban case, wrote on his blog.

The 4th U.S. Cir­cuit Court of Ap­peals last month upheld an in­junc­tion block­ing the travel por­tion of the or­der from tak­ing ef­fect. The rul­ing said the re­li­gious an­i­mus Mr. Trump showed to­ward Mus­lims dur­ing his pres­i­den­tial elec­tion cam­paign tainted his sec­ond ver­sion of the ex­ec­u­tive or­der.

The Trump ad­min­is­tra­tion’s re­vised or­der would block ad­mis­sions of vis­i­tors from the ma­jor­ity-Mus­lim coun­tries of Iran, Libya, So­ma­lia, Su­dan, Syria and Yemen for 90 days and would im­pose a 120-day pause on refugee ad­mis­sions to the United States.

The Jus­tice Depart­ment has sought to de­fend the ex­ec­u­tive or­der in court by draw­ing dis­tinc­tions be­tween Mr. Trump’s call for a Mus­lim ban when he was a can­di­date and his com­ments as pres­i­dent about how na­tional se­cu­rity con­cerns jus­tify the ex­ec­u­tive or­der.

Whether courts should be able to look back at cam­paign state­ments in judg­ing the ac­tions of a pres­i­dent has been at the cen­ter of the le­gal ar­gu­ments, but an­a­lysts said Mon­day that Mr. Trump may have ended that fight.

“These will also go a long way to­ward moot­ing de­bate over use of cam­paign state­ments; no need when, as Pres­i­dent, he still says these things,” Steve Vladeck, a pro­fes­sor at the Univer­sity of Texas School of Law, wrote on Twit­ter.

Mr. Trump’s tweets even earned a re­buke from White House Coun­sel Kellyanne Con­way’s hus­band, Ge­orge Con­way, who said the pres­i­dent’s com­ments about the travel ban were dam­ag­ing to the Of­fice of the Solic­i­tor Gen­eral’s ef­forts to per­suade the Supreme Court to re­in­state the ban.

“These tweets may make some ppl feel bet­ter, but they cer­tainly won’t help OSG get 5 votes in SCOTUS, which is what ac­tu­ally mat­ters. Sad,” Mr. Con­way wrote on Twit­ter.

Mr. Con­way, who had with­drawn his name from con­sid­er­a­tion for a top post in the Jus­tice Depart­ment, went on to clar­ify that he still sup­ports the pres­i­dent and his poli­cies. But he said he was try­ing to make the point that “tweets on le­gal mat­ters se­ri­ously un­der­mine Ad­min agenda and POTUS.”

The Jus­tice Depart­ment de­clined to com­ment on the pres­i­dent’s tweets or its strat­egy in the on­go­ing travel ban lit­i­ga­tion.

At­tor­neys from the Amer­i­can Civil Lib­er­ties Union have un­til June 12 to re­spond to the ad­min­is­tra­tion’s pe­ti­tion to the Supreme Court and ac­knowl­edged Mon­day that Mr. Trump’s most re­cent tweets may well be quoted in those doc­u­ments.

ACLU at­tor­ney Omar Jad­wat, who ar­gued one of the travel ban chal­lenges brought in Mary­land, said Mr. Trump’s tweets make clear that he fa­vors the first ver­sion of the or­der and that the sec­ond ver­sion of the or­der was writ­ten not to re­move re­li­gious an­i­mus but merely for lit­i­ga­tion pur­poses.

“Those things re­ally un­der­cut the nar­ra­tive the Jus­tice Depart­ment lawyers have been try­ing to put for­ward in the cases and un­der­line the dan­ger of adopt­ing the nar­ra­tive that the gov­ern­ment has been push­ing,” Mr. Jad­wat said.

Oth­ers aren’t con­vinced that Mr. Trump’s com­ments will cre­ate any real stum­bling block for Jus­tice Depart­ment at­tor­neys. “The ACLU can blovi­ate all they want about this, but there is noth­ing in his tweets that in any way changes the con­sti­tu­tion­al­ity and le­gal­ity of the pres­i­dent’s ex­ec­u­tive orders,” said Hans von Spakovsky, a se­nior le­gal fel­low at the con­ser­va­tive Her­itage Foun­da­tion. “There is not a sin­gle word in any of the tweets that any­one could say demon­strates dis­crim­i­na­tion on a re­li­gious ba­sis.”

Mr. Tur­ley agreed that Mr. Trump’s com­ments in no way al­tered the core of the le­gal ar­gu­ments that the Jus­tice Depart­ment has put forth in sup­port of the ex­ec­u­tive or­der, which he be­lieves fa­vor the ad­min­is­tra­tion. But he said the ref­er­ence to a ban “un­der­mines the thrust of the ar­gu­ments raised in courts across the coun­try.”

“The only log­i­cal con­clu­sion that can be reached is that Trump re­ally does not care if he wins the case,” Mr. Tur­ley said. “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.”


SELF-IN­FLICT­ING: Pres­i­dent Trump gave courts and crit­ics am­mu­ni­tion by mock­ing his own March 6 ex­ec­u­tive or­der.

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