Donald Trump undermines his lawyers’ case for the travel ban

ON THE eve of the Iowa caucuses in January 2016, following a string of controversial statements, Donald Trump marvelled at his political resilience. “I could stand in the middle of 5th Avenue and shoot somebody”, he said, “and I wouldn’t lose voters”. But the president’s preternatural ability to shed fallout from his own words may have its limits. A series of tweets on the morning of June 5th could doom his March 6th executive order banning travel from several Muslim countries, scuttling one of his central campaign promises.

How could a few tweets undermine the president’s policy? By supplying fresh evidence of the very points the order’s detractors have been citing in court. Mr Trump’s advocates—highly skilled, hard-working lawyers at the Department of Justice—have been striving to explain to federal judges across the land why the president’s unprecedented effort to ban travel from six Muslim-majority nations is not the so-called Muslim ban he called for in December 2015, or even a “ban” at all. They’ve resorted to redundancy for emphasis: it’s not just a “pause”, but a “temporary pause” on travel from these countries. And it is rooted not in bias or animosity against Muslims but in the sober calculation of multiple executive agencies that vetting procedures of travellers from Iran, Libya, Somalia, Sudan, Syria and Yemen need to be re-evaluated for the sake of national security.

In the course of a few minutes, the president subverted this case point by point. First, using upper case letters and an exclamation point for emphasis, Mr Trump clarified how the order should be understood: “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!” This suggests Mr Trump would not be satisfied with merely reviewing vetting procedures; he wants to keep people from certain places out of the country, full stop. And by preferring “ban” to “pause”, he is indicating the 90-day prohibition may be a prelude to a more enduring change in policy.

Second, Mr Trump harked back to his original order from January 27th, a haphazardly crafted document that applied to America’s lawful permanent residents and caused chaos at American airports by effectively rescinding visas from incoming travellers at 35,000 feet. “The Justice Dept. should have stayed with the original Travel Ban”, Mr Trump tweeted, “not the watered down, politically correct version they submitted” to the Supreme Court.

This is a truly odd series of sentiments. Lawyers in the Justice Department serve at the president’s pleasure and carry out his policies. If Mr Trump wanted to stick with his first order banning travel, he could have directed the attorney-general to make that happen; his tweet makes it sound as if his own department went rogue. More damningly, Mr Trump reaffirms his preference for the first ban—which was blocked in the courts for exceeding legal and constitutional bounds—and concedes that the second version was a “watered down” and “politically correct” version of the first. As Corey Brettschneider, a political scientist at Brown University, observes, admitting that the first ban was not politically correct implies that both it and the second order unconstitutionally target Muslims, even if animus in the latter is slightly better cloaked: “No one thinks that targeting countries that posed an actual threat would be politically incorrect”.

Mr Trump’s third tweet—“The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!”—highlighted the president’s weak grasp of what his administration is doing—and what courts are empowered to do. Last week, the Justice department did ask for an expedited hearing of the second travel ban in two cases: State of Hawaii v Trump (pending before the Ninth Circuit Court of Appeals) and International Refugee Assistance Project v Trump (in which the Fourth Circuit Court of Appeals refused on May 25th, by a 10-3 vote, to let the ban go into effect). The Supreme Court seems quite willing to speed things up: on June 2nd, the day after the administration filed its petition, the justices ordered the ban’s challengers to respond in writing by June 12th at 3pm. By the end of the month, we should know if the Supreme Court will take the case (requiring the votes of four justices) and whether it will give the green light to the ban in the meantime (requiring five votes). But there is no sense in which the administration lawyers could seek a “much tougher version” of the travel ban from the Supreme Court; the judiciary does not make policy.

Compared with the first three tweets, Mr Trump’s finale was perhaps the least damaging to the legal case: “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!” But this tweet pulls the rug out from the administration’s stated purpose behind the executive order. Extreme vetting, the president reports, is already happening, without the travel ban in place. If the travel ban—or pause, or “temporary pause”—is only necessary to permit the administration to undertake a review of vetting standards, it suddenly has no justification at all. Combine that with a condemnation of the courts as “slow and political”—echoing Mr Trump’s tweeted disparagement of the “so-called judge” who blocked his first order and of the Ninth Circuit Court as hysterically liberal—and Mr Trump did little to endear himself to the nine people standing between him and his travel restrictions.

Perhaps Mr Trump’s latest tweets will prove harmless. The Supreme Court may still vote to temporarily lift the stay on his executive order; it may even give him a victory after a full hearing in the autumn. But in a case where the president’s motives are in question, Mr Trump has given opponents of the travel ban a rather remarkable trove of comments to use against him in their pleadings to the Supreme Court. Mr Trump may do no harm in the eyes of his die-hard supporters, but the justices are likely to have a more discerning eye.

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