Andrew Harnik / AP
President Donald Trump kicked off the week with a flurry of early morning tweets urging the courts to block his travel ban executive order. But in doing so, it might just have made it more likely that the courts would continue to 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 BAND!
– Donald J. Trump (@realDonaldTrump) June 5, 2017
The Justice Department should have stuck with the original travel ban, not the watered down, politically correct version they submitted to SC.
– Donald J. Trump (@realDonaldTrump) June 5, 2017
The Justice Department should request an expedited hearing of the watered-down Travel Ban before the Supreme Court — and seek a much tougher version!
– Donald J. Trump (@realDonaldTrump) June 5, 2017
However, we are EXTREMELY VETTING people to come to the United States to help keep our country safe. Courts are slow and political!
– Donald J. Trump (@realDonaldTrump) June 5, 2017
These tweets followed several over the weekend about the ban and the terrorist attack in London, including this one from Saturday night:
We need to be smart, vigilant and tough. We need the courts to restore our rights. We need the travel ban as an extra level of security!
– Donald J. Trump (@realDonaldTrump) June 3, 2017
In January, Trump signed an executive order banning nationals 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 it, instead of appealing to the Supreme Court, Trump signed a modified version of the order. The new ban repealed the old one, reduced the number of prohibited countries from seven to six, and added exceptions and waivers. However, federal courts in Maryland and Hawaii have blocked it, and now the Department of Justice has appealed to the Supreme Court to have this second version of the ban reinstated.
The biggest question in the litigation over the ban is whether the courts should focus only on the text of the order or also consider Trump’s comments from the campaign trail, as well as during his presidency, to determine whether the order uses national security as a pretext to ban Muslims from the country. The president’s lawyers argue that the courts should focus on the text of the order and refer to the president’s authority on national security. Trump’s tweets on Monday morning and over the weekend make it harder for the courts to justify doing that.
The travel ban is supposed to be a temporary fix until the government can review its vetting procedures. But Trump’s tweets make it seem like the ban itself is his goal. Trump repeatedly uses and defies the word “ban” when his administration has instead sought to call for a pause.
The tweets “undermine the government’s best argument — that courts should not look beyond the four corners of the Executive Order itself,” said Stephen Vladeck, an expert in national security and constitutional law at the U.S. Law School. the University of Texas. “Whether or not candidate Trump’s statements matter (a point on which reasonable people will likely continue to disagree), the more President Trump says while the litigation is ongoing tends to suggest that the ‘Order is pretextual, the more difficult it is to convince judges and sympathetic judges that only the text of the Order matters. And once the courts start looking at the statements of the president, it is not difficult to find those which raise questions about anti-Muslim motivations.
Even the president’s allies acknowledge that his tweets are a problem. George Conway, the husband of Trump’s first adviser Kellyanne Conway, answered to Trump on Twitter, noting that the work of the Attorney General’s Office – which defends 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.
– George Conway (@gtconway3d) June 5, 2017
Conway, who recently withdrew his name from consideration for a position at the Department of Justice, later followed up to clarify his position.
2) … and of course, my wonderful wife. That’s why I said what I said this morning. Every sensible lawyer in WHCO and every politician…
– George Conway (@gtconway3d) June 5, 2017
3) … appointed to DOJ wd agree with me (as some have already told me). The point cannot be stressed enough that tweets about legal matters…
– George Conway (@gtconway3d) June 5, 2017
4) …seriously undermines the agenda of the Admin and POTUS – and those who support it, like me, need to step up that pt and not be shy.
– George Conway (@gtconway3d) June 5, 2017
Trump may soon see his tweets used against him in court. Omar Jadwat, the ACLU attorney who argued the case before the 4th Circuit Court of Appeals, said him Washington Post this morning that the ACLU’s legal team plans to add Trump’s tweets to their arguments before the Supreme Court. “The tweets really undermine the factual narrative that the president’s lawyers have been trying to put forward, which is that regardless of what the president has actually said in the past, the second ban is kosher if you look at it entirely on its own terms .” Jadwat said Post.
