President Trump’s tweets are undermining the legal case for his travel ban, according to a host of legal experts including the husband of top White House aide Kellyanne Conway.
In a series of 140-character barbs, Trump on Monday complained his administration had created a “watered down, politically correct version” of the executive order he originally signed temporarily banning travelers from seven Muslim-majority countries from entering the U.S.
Never mind that Trump himself signed the revised order, which was meant to avert legal challenges, and that Justice Department lawyers have repeatedly argued the new policy does not target Muslims.
George Conway, a prominent attorney who is married to senior Trump adviser Kellyanne Conway, wrote on Twitter that the president’s tweets “may make some ppl feel better, but they certainly won’t help [the Office of the Solicitor General] get 5 votes in [the Supreme Court], which is what actually matters. Sad.”
Conway, who nearly became a top Trump appointee at the Justice Department, later said that his criticism was a form of tough love for the president.
“Tweets on legal matters seriously undermine Admin agenda and POTUS–and those who support him, as I do, need to reinforce that pt and not be shy about it,” he tweeted.
Opponents of the travel order, on the other hand, took pleasure in Trump’s self-inflicted wound.
Neal Katyal, who served as acting solicitor general under President Obama and is representing Hawaii in its lawsuit against the travel ban, joked that Trump was “acting as our co-counsel.”
“We don’t need the help but will take it!” he tweeted.
Trump’s outburst comes at a pivotal time for the legal battle over the travel ban, as the Supreme Court is set to hear arguments next week on the Trump administration’s petition to allow the ban to take effect.
The fight began in January, after Trump signed an executive order barring citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the U.S. for 90 days. The order also paused refugee admissions for 120 days, while indefinitely halting the acceptance of Syrian refugees.
The court immediately blocked the directive, forcing Trump to reluctantly sign a new order in March that dropped Iraq from the list and made the Syrian refugee ban temporary. But federal courts blocked the policy again.
One of the central legal questions in the lawsuits against the order is whether the president’s statements can be used in court to show discriminatory intent against Muslims.
Trump had called for a “shutdown” on Muslims entering the United States while running for president, which several federal judges cited in their decisions blocking the travel ban.
After Trump called the revised policy “watered down” at a Nashville rally in March, the 4th U.S. Circuit Court of Appeals cited the remarks as evidence that changes to the policy were “to effectuate the promised Muslim ban, and … survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States.”
U.S. government lawyers have gone out of their way to not use the term “travel ban” in court as they seek to convince judges that the policy is rooted in evidence-based national security concerns and not religious animus.
Trump’s most recent tweets have almost certainly made it more difficult for Justice Department lawyers to make that argument.
“President Trump could be undercutting his case by admitting that the order is a travel ban, by saying the revised order waters down the first order and by accusing the courts of taking away the people’s rights, whatever that means,” said Carl Tobias, a law professor at the University of Richmond School of Law.
Trump kicked off his Monday morning tweetstorm by questioning why the Justice Department had decided to have the high court consider his second travel ban.
“The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.,” Trump tweeted, while urging the department to work on a “much tougher version in the meantime.”
Like lawyers at the Justice Department, Trump’s top aides have insisted that the policy is not a travel ban. “It’s not a Muslim ban. It’s not a travel ban,” White House press secretary Sean Spicer told reporters on Jan. 31. “It’s a vetting system to keep America safe.”
But Trump on Monday made it clear he disagrees.
“People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Trump tweeted.
Pressed to explain the apparent contradiction, White House spokeswoman Sarah Huckabee Sanders told reporters, “The president isn’t concerned with what you call it.”
“He’s concerned with protecting the American people,” she added. “I mean, that’s the bottom line here. And, you know, he’s going to take whatever step he can to move that agenda forward.”
Ian Samuel, a Climenko Fellow and lecturer at Harvard Law School who clerked for the late Justice Antonin Scalia, said that the federal government’s lawyers would have to scramble to salvage their case at the Supreme Court.
“The government’s entire argument in this case is grounded in the need to respect the president’s national security judgments because of the relative competencies of the various branches,” said Samuel. “That is, it’s a version of, ‘you need to trust us on this one.’ To behave this way in public squanders any chance that this argument can be taken seriously. It is an unforced error of unbelievable magnitude.”
Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and a member of the conservative Federalist Society, downplayed the degree to which Trump’s tweets will affect the current case.
“With respect to the Supreme Court, my reading of the case law is that the justices’ review is limited to the four corners of the executive order, so all of this is irrelevant,” Blackman said.
“But, no doubt, [the tweets] are giving the Justice Department serious grief now.”
Lydia Wheeler and Katie Bo Williams contributed.