If you want to feel sorry for someone today, feel sorry for Jeffrey Wall, Donald Trump’s acting solicitor general, who has gamely defended the president’s “temporary vetting”—or as the president continues to call it, the “watered down politically correct version" of his original Muslim ban—in court.
In one federal appellate argument after another, Wall has stood and urged the federal judiciary to accept a “presumption of regularity” for Trump’s decisions, insisting both that he makes reasoned dispassionate national security decisions well within the scope of his constitutional authority and also that he works closely with his attorney general, homeland security chief, and other diligent members of his executive branch to arrive at sound policy conclusions. Then, with a single tweet, or a series of insane ones, Trump openly puts the lie to that presumption. And Jeff Wall, who has done a creditable job of making Trump seem normal, is reduced to little more than an ambulance chaser in a powder-blue suit—someone whose lying client is making a mockery of the court.
Just last week, the Justice Department asked the Supreme Court to review a lower court ruling blocking the order and to reinstate his travel ban in the interim. Then late this past Friday, the high court ordered expedited briefing, telling the plaintiffs to answer the Justice Department speedily. This is clearly on track to be resolved, sooner rather than later, by the nine justices.
But Trump, seemingly unaware that Wall spends most of his waking hours trying to make the president appear sane and measured, spent the weekend signaling to the justices that everything Wall has told the appellate courts is the legal equivalent of lipstick on a pig.
This past weekend, as news broke of the London attacks, and even before knowing who the perpetrators were or whether they came from any of the six countries from which he is attempting to limit immigration, the president recklessly tweeted: “We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!” He went on to mischaracterize the words of the mayor of London, then added, “We must stop being politically correct and get down to the business of security for our people.”
The ACLU was delighted to hear this, tweeting on Sunday: “Glad we both agree the ban is a ban.”
Monday morning, the president dug in more, tweeting: “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.” Just to clarify that in his view, his Justice Department had gone rogue, he then tweeted: “The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!” before adding: “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!”
This helps Trump, um, not at all, in the litigation. As Neal Katyal, who argued for the challengers in the 9th U.S. Circuit Court of Appeals, quickly wrote on Twitter, “Its kinda odd to have the defendant in HawaiivTrump acting as our co-counsel. We don’t need the help but will take it!”
Why does any of this matter to a reviewing court trying to understand whether the ban is legitimate or a thinly veiled expression of animus toward Muslims? Well, for one thing the rest of Trump’s administration continues to swear, in court and in public statements, that whatever the immigration order is, it is assuredly not a “travel ban” but is instead “extreme vetting.” At oral arguments, Wall insisted that the order is nothing akin to a “Muslim ban” and that such campaign language disappeared as soon as Trump was elected and “formed a government.” This administration is intently echoing this statement. Last week Trump’s Homeland Security Secretary John Kelly said again on television that the administration had not issued anything resembling a travel ban: “The fact is that in those countries, we have very little ability to actually verify, vet the people that are coming out of those countries. So, what the president and it’s not a travel ban, remember. It’s the travel pause. What the president said, for 90 days, we were going to pause in terms of people from those countries coming to the United States.” The fact that this statutory 90-day period now has elapsed without any new “extreme vetting” being enacted is also an issue in the litigation, with the DOJ continuing to claim that it was forced to “put their pens down” and create no new protocols when the Hawaii order went into effect.
Second, the Justice Department has been at pains to say that whatever defects the first version of the travel ban suffered, they were cured, in good faith, by the second. But in part because of presidential statements, the 4th U.S. Circuit Court of Appeals found in May that the second ban was actually a lot like the first, in part because the president used the words watered down to describe it at a rally after it went into effect: “These statements suggest that like [the first ban], [the second’s] purpose is to effectuate the promised Muslim ban, and that its changes … reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States.”
Third: The president seems to have no understanding that his Justice Department works with him and not against him, and that if he continues to signal that his views diverge from theirs, he is kneecapping Wall’s argument that Jeff Sessions’ and John Kelly’s steady presence somehow affords the president a presumption of normalcy. Indeed he is now openly arguing that whatever his lawyers do undermines his own desires as president. He is openly shattering the idea that his government formulates considered national security decisions. Former DOJ spokesman Matthew Miller tweeted Monday morning that “He actually seems to have no idea he was the one who signed the ‘watered down, politically correct version.’ Not DOJ, him. Amazing.” Trump appears to be unaware that he signed the second order, not his Justice Department. This all suggests that the magical thinking Wall puts forth—about how his lawyers restrain Trump’s worst impulses and afford him policy cover—is yet another pretext that the courts must swallow, in the already-multilayered cocktail of pretext the DOJ is attempting to pour down their throats.
And finally, this matters because the beating heart of this litigation is a dispute about whether Trump’s hot-mic tweets, post-election statements, and wacky asides count as signifiers of presidential intent. Judges have differed on this topic, with some suggesting that perhaps campaign speech can be disregarded but post-election speech represents actual policy. And Trump has now demolished the government’s claim that statements made during the campaign are moot, by reclaiming them this week. Others warn that this whole enterprise is a dangerous foray into psychology and that judges must not probe the recesses of the presidential mind.
But even psychologists known that a cigar is sometimes just a cigar and that words are sometimes actual words, and nobody needs a CT scan to understand that Donald Trump promised a “Muslim ban,” then signed a Muslim ban with some modifications, then modified it yet again, all while insisting that the Muslim ban was what he wanted all along. This isn’t gauzy psychologizing. It’s called reading. And to the folks who suggested Monday morning that Trump wants to lose at the high court so he can further destabilize an institution that protects us from him, I urge you to read Masha Gessen’s reminder that it’s unwise to impute cunning to the merely mediocre.
If you want to spend time peering at the Rorschach test of the human mind, Trump’s is easy. We know what he wants and he just clarified that—yet again—for the Supreme Court. The tougher question is what Justice Anthony Kennedy thinks of a president who is anything but regular, anything but respectful toward the judicial branch, and anything but impressed by the rule of law. When Trump insults his lawyers, the courts, and the law, it’s hard not to imagine Kennedy worrying that he too will become an ambulance chaser in a blue suit. At some point, one has to ask whether the “presumption of regularity” will be stripped away from the courts by the bottomless contempt of Donald Trump. We’ll find out soon enough.