Trump’s twitter tirades may be undermining the legal work of top-notch Justice Department lawyers assigned to represent his administration at the Supreme Court.
The journey for Justice Department lawyers defending the ban began last January, when travelers suddenly found themselves blocked from entering the country following Trump’s first executive order banning entry to people from seven Muslim-majority countries. Confusion reigned and civil rights lawyers set up impromptu law firms in airport hallways.
Federal courts ultimately ruled against the ban, often seizing upon the President’s own statements during the campaign — page after page — to hold that the executive order amounted to a Muslim ban in violation of the Constitution’s Establishment Clause.
In short order, the administration issued a revised travel ban in March, drafted in part to ease religious liberty concerns of the courts.
Acting Solicitor General Jeffrey Wall, who left his law firm Sullivan & Cromwell to join the administration, hit a reset button in court papers and finally appealed to the Supreme Court. He urged the justices to accept the travel ban on its face and disregard the campaign statements.
Wall argued the ban was “religion-neutral in operation: it draws distinctions among countries based on national-security risks identified by Congress and the Executive, not religion, and applies evenhandedly in the six designated countries.”
And then his client spoke up again.
“The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to the Supreme Court. ” Trump tweeted in one Monday morning.
“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!” he said in another.
The President’s tweets managed to suggest there were no differences between the two executive orders. Even worse, he suggested that government lawyers are simply making a “politically correct” argument as a way to please the courts.
And while the President said the government is “vetting” people coming in, just last month, Wall told judges that the government had “put its pencil down” because even the vetting provision of the ban had been frozen.
The President’s tweets are powerful, and in the political arena he can probably use 140 characters to bolster his case. But in court, it’s not a help.
If the Supreme Court takes up the case, it will focus like a laser on whether to pay attention to what the President has said about the travel ban. If the justices do, they may not like what they see. And they may also recoil at any attempt to throw Wall — who has appeared frequently before the Court and is a former clerk to Justice Clarence Thomas, under the bus.
Conway’s response serves as a shot across the bow and others are on board. A source close to the White House who knows Conway said that they both “care about” the President.
“Conway’s tweet just reflects what a lot of people are thinking this morning: People who support the President, but who understand the delicacy of what has to be done to defend his policy, ” the source said.
