Is Donald Trump actively undermining his own executive order?
On Monday, Trump disgorged a bizarre stream of tweets about his second travel ban that beclowned his Justice Department and seemed to reveal that he did not understand who approved the executive order he’d signed. (He did, to state the obvious.) Even worse, Trump complained that the second ban was a “watered down, politically correct version” of the first one, which had included explicit references to religion. And he called the order what it is—a ban—as opposed to what his DOJ insists it is—a “pause.” Thus, in one choleric tweetstorm, Trump managed to undercut the arguments that his order is (1) not a ban, (2) not a milder regurgitation of his first order (which couldn’t survive in court), and (3) not about Muslims.
All of this is fairly humiliating for the lawyers who signed up to defend the Trump administration. But as David Savage and a few other sharp-eyed observers noted on Monday, Trump didn’t just hurt the optics of his order; he also directly subverted the exact legal arguments used to prop it up in court. Neal Katyal, who is challenging the order, quickly pointed out that Trump, the defendant, is essentially serving as the plaintiffs’ co-counsel. It is almost as if Trump read the 4th U.S. Circuit Court of Appeals’ decision blocking his order and decided to prove that it was exactly right.
While there are several layers to Trump’s self-sabotage, the one closest to the surface is the most significant. As the 4th Circuit explained in its recent decision, courts must generally defer to the federal government’s determinations regarding immigration and national security. There is, however, a key exception to this rule: When a plaintiff makes “an affirmative showing of bad faith” that is “plausibly alleged with sufficient particularity,” courts can “look behind” the action to search for constitutional infirmities.
For months, Trump’s lawyers have insisted there is no such evidence of bad faith with regard to the travel ban. On Monday, Trump burned that argument to the ground.
“People, the lawyers and the courts can call it whatever they want,” Trump tweeted, “but I am calling it what we need and what it is, a TRAVEL BAN!” Later, he reiterated his belief that “we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” At a bare minimum, these statements imply that “the lawyers” are not telling the truth about the order, propping it up in “politically correct” pretext to shift the focus away from “certain DANGEROUS countries” (that happen to be Muslim-majority). The tweets run counter to the DOJ’s arguments and hint at a more malign motive. In short, they illustrate precisely the kind of “bad faith” necessary to look beyond the order’s text to determine its true intent.
That’s bad news for Trump, because once courts are able to examine his statements for unlawful animus, they’ll find loads of it. Now, it is true that Trump made his most vicious anti-Muslim statements before entering the Oval Office and that his second ban omits unambiguous references to religion. And under relevant Establishment Clause precedent, prior indications of illegitimate purpose do not “forever taint” a state actor. The taint of unconstitutionality can dissipate, and Trump’s defenders assert that the president’s conciliatory statements about Islam may have done the trick.
Yet Monday’s tweets might as well have been designed to perpetuate the stain of animus that Trump’s lawyers are working so very hard to bleach out. Trump reverted to his instincts, railing against the “politically correct” second ban, grousing that the Justice Department “should have stayed with the original Travel Ban,” and claiming that his administration might “seek [a] much tougher version!” An extremely generous reading of these tweets could still not overlook the implication that the second order is, to Trump’s mind, simply a less effectual version of the initial ban, and that neither of the orders accomplished his true goal (hence the need for a “much tougher version.”) And what is that goal? Before becoming president, Trump stated it outright: “a total and complete shutdown of Muslims entering the United States.” His tweets on Monday suggest that this unconstitutional objective still lies behind his executive orders.
Trump hurt his own cause in one final, and somewhat subtler, way. One of his tweets included the assertion that: “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!” That’s a problem for his lawyers, because they have repeatedly taken the posture that all they sought to do with the order was take a pause to improve their vetting procedures. They have taken the position that the lower court order in Hawaii has precluded them from enhancing these procedures in any capacity.
In oral argument at the 4th Circuit, Acting Solicitor General Jeffrey Wall insisted that the government had never issued any kind of “ban”—that the revised executive order merely sought to create a “temporary pause” during which the administration could evaluate whether certain travelers from six countries had been subject to adequate vetting. When he was peppered by the judges with questions about why, if the administration only wanted a few weeks to study and improve the vetting from the countries at issue, it hadn’t done so already, Wall explained that Judge Derrick Watson in Hawaii had ordered them to stop doing anything, including studying the vetting, when he enjoined the second executive order in April. As Wall put it, “We have complied by that injunction. We’ve put our pens down. We haven’t done any work on it. So the 90-day period, in our view, has not been able to run at all.”
It is impossible to reconcile these two statements. Either Trump was lying when he tweeted that the “extreme vetting” is happening, or Wall was lying when he suggested that the DOJ had made no move to even look at vetting procedures. This is not necessarily a material lie—Trump’s lawyers will likely say that “extreme vetting” as described by the president is sufficiently vague as to be meaningless. But it points to a few problems going forward in the litigation: For one thing, Trump seems to be saying that regardless of what the courts have told his Justice Department and Department of Homeland Security lawyers, they are going to do whatever they want to do. Trump’s statements also seem to suggest that the 90-day, 100-day, and other deadlines in the executive order were arbitrary, and that the administration will do as much vetting as it wants, on whatever time schedule it wishes. To maintain credibility, Trump’s lawyers will now have to spell out before the courts exactly what kind of “extreme vetting” it is currently engaged in, and why it cannot thus meet the timelines set forth in the order.
So, what in the world is Trump doing? Is he crazy like a fox, gaming this litigation in some fashion that we don’t yet understand? Is he so irked with his lawyers that he’s simply trying to foil them in court?
We think the explanation is simpler. Trump isn’t gaming anything. He’s simply acting from his usual place of id, pride, and cluelessness. That doesn’t mean he’s destined to lose: We’d say he still has roughly a 50-50 chance of winning at the Supreme Court. But his tweets are making it increasingly difficult for his lawyers—and his allies on the bench—to give him cover. Trump isn’t crazy like a fox, and he isn’t trying to lose. He just doesn’t understand how to win.
