Trump tweets echo in court

They may be writ­ten off the cuff, but record lingers

USA TODAY International Edition - - NEWS - Gre­gory Korte

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.

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