Trump tweets echo in court
They may be written off the cuff, but record lingers
WASHINGTON – When a federal judge in the District of Columbia blocked President Trump’s ban on transgender troops last month, she wrote that Trump’s order was not driven by genuine concerns regarding military efficacy.
Her evidence? The president’s own tweets.
It was the latest case in which Trump’s penchant for 140-character pronouncements came back to haunt him in court.
The ability of the president to broadcast his thought process in real time could have far-reaching implications — not just on the Trump White House but on the presidency itself.
Shoot-from-the-hip tweets that came from a reality television star campaigning for president have an entirely different effect when they come from the president of the United States.
Judges have turned to his tweets to discern the motivation behind executive orders that have been challenged in court — something they’ve been reluctant to question in the past.
Presidential tweets could force a rethinking of long-understood doctrines on presidential immunity and obstruction of justice, legal scholars said.
“The 140-character medium kind of complicates things because it’s new — but it doesn’t fundamentally change the analysis,” said Daniel Hemel, a law professor at the University of Chicago. “Bad cases make bad law, and cases where the president exceeds the bounds of his constitutional authority are going to lead to precedents that hem in a future commander in chief.”
It’s not that Twitter as a platform forces the issue. It’s the impulsive oversharing that it encourages — and that Trump relishes. In the past, presidential statements were often carefully written and vetted by staffers, who would carefully edit out legally problematic language. Even when the president spoke extemporaneously, he would often be prepared with talking points.
Trump’s supporters see his tweets as authentic, and his ability to publish them with the tap of a smartphone means he can get around the news media “filter” and take his message directly to the people.
The downside: Trump’s stream-ofconsciousness tweeting creates a public record that can and will be used against him in a court of law.
In the transgender ban case, U.S. District Judge Colleen Kollar-Kotelly wrote that announcing an abrupt policy change on Twitter lacks “any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans.”
Two weeks earlier, U.S. District Judge Derrick Watson blocked the implementation of a travel ban after a lawsuit claimed it illegally discriminated against Muslims. The Justice Department argued that the ban had nothing to do with religion, but the judge cited Trump’s tweets as evidence that he “has never renounced or repudiated his calls for a ban on Muslim immigration.”
One such tweet: “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to (the Supreme Court).”
Even Trump’s allies have said his tweets don’t help his legal case. Attorney George Conway — who was considered for a post as Trump’s solicitor general and who is married to White House counselor Kellyanne Conway — said the travel ban tweets “seriously undermine” the president’s agenda by making it more difficult to get five votes on the Supreme Court to uphold his orders.
The Supreme Court has not decided either case on the merits, so it’s unclear how much legal weight Trump’s tweets will carry.
The consequences could go beyond his executive orders. Doug McKechnie, a law professor at the U.S. Air Force Academy, said courts could rethink doctrines on presidential immunity.
Courts have long held that the president can’t be sued for official actions. In a case concerning President Nixon’s firing of an Air Force whistle-blower, the Supreme Court held that the president has absolute immunity when he “acts within the ‘outer perimeter’ of his official responsibilities.”
That “outer perimeter” has been mostly self-policing. Presidents rarely involved themselves in issues unrelated to their official duties.
If the president’s tweets aren’t bound by technological and institutional constraints, they might not deserve the legal benefit of the doubt, McKechnie wrote in an article in the University of Miami Law Review.
“The 140-character medium kind of complicates things because it’s new.” Daniel Hemel University of Chicago
President Trump is never at a loss for words on his Twitter feed.