WASHINGTON — President Donald Trump’s aggressive use of Twitter to criticize federal judges is unprecedented. And troubling, legal experts say.
Or is it wickedly smart, some wonder? This notion, making the rounds of legal scholars (via Twitter, of course) goes like this:
Trump signed an executive order barring visas from people in seven Muslim-majority countries and now knows it was botched, not only in the way it was rolled out — with even current visa holders including doctors kept away — but also in its very drafting. He knows he stands to lose in court challenges now at the Ninth U.S. Circuit Court of Appeals or eventually at the Supreme Court.
By openly and hostilely attacking judges, he helps tilt the outcome. So, if in the future a foreign-born terrorist attacks, Trump can say with his customary certainty that he tried — blame the judges.
Though seemingly far-fetched, the theory emerged this week in the blog Lawfare from Jack Goldsmith, a Harvard law professor who was an assistant attorney general under President George W. Bush. The headline: “Does Trump want to lose the EO battle in court? Or is Donald McGahn simply ineffectual (or worse)?” McGahn is White House counsel.
Wherein I ask: Does Trump Want to Lose the EO Battle in Court? Or is Donald McGahn Simply Ineffectual (or Worse)? https://t.co/KVrkVPlltH
— Jack Goldsmith (@jacklgoldsmith) February 6, 2017
Cleveland.com asked three law professors, each an authority on presidential power. Each said he has been mystified by the president’s tweets, which could undermine an independent judiciary.
Not a one of them said he could rule out Goldsmith’s theory.
“We don’t know but that’s certainly a strategy that could be used,” said Carl Tobias, a constitutional law professor at the University of Richmond and an authority on judicial selection and independence. And if it is happening, he added, it is troubling.
Here’s a breakdown of the tweets and the thought around them. (Note: we’re dealing with just the tweets on judges, not the entire catalog of tweets, including one Wednesday criticizing Nordstrom.)
A basic rule for clients: shut up
Trump’s tweets — you can see them below — say federal judges who rule against his executive order on immigration are putting America’s safety at risk. If nothing else, the tweets violate a basic lawyers’ understanding: namely, don’t antagonize the court.
I will be speaking at 9:00 A.M. today to Police Chiefs and Sheriffs and will be discussing the horrible, dangerous and wrong decision…….
— Donald J. Trump (@realDonaldTrump) February 8, 2017
Trump is either ignoring that advice or else has a different end game in mind, legal scholars say. Then again, says Tobias, “This is a different kind of client.”
If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!
— Donald J. Trump (@realDonaldTrump) February 8, 2017
Jonathan Adler, a constitutional law professor at Case Western Reserve University, called the president’s Twitter tactics “pretty amazing” — and added that it is “pretty surprising that no one has been able to get the president to exercise more discretion with his comments.”
“I think a lot of his comments are both unwise and inappropriate,” Adler said.
The threat from radical Islamic terrorism is very real, just look at what is happening in Europe and the Middle-East. Courts must act fast!
— Donald J. Trump (@realDonaldTrump) February 7, 2017
Trump’s Twitter bursts did not occur in a courtroom, of course. Still, his profile as president and the significance of the immigration cases have sparked questions about his motivation.
So what is his end game? And are Trump’s tweets shrewd, or can’t his lawyers control him?
A strategy to win:
I have instructed Homeland Security to check people coming into our country VERY CAREFULLY. The courts are making the job very difficult!
— Donald J. Trump (@realDonaldTrump) February 5, 2017
Goldsmith, author of the Lawfare piece, did not say that losing is definitely Trump’s plan.
Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!
— Donald J. Trump (@realDonaldTrump) February 5, 2017
Losing, in fact, seems foreign to this president’s nature. As a hotel and real estate developer, Trump built a reputation as someone who will go to the brink to get what he wants. His goal in business and politics is to win, he has said more than once, and he used the word “loser” liberally to deride his election opponents.
So, as Goldsmith said, Trump might merely think his tweets will pressure the judges to cave. After all, “Judges don’t like to be responsible for national security debacles…. and thus they might worry about Trump’s predictions of a causal nexus between their rulings and a future terrorist attack.”
The judge opens up our country to potential terrorists and others that do not have our best interests at heart. Bad people are very happy!
— Donald J. Trump (@realDonaldTrump) February 5, 2017
A strategy to lose:
But there is another possibility: The tweets could help influence a court ruling against Trump, and that will be OK with Trump.
How could that be? Follow the logic:
Attorneys challenging the executive order say there is no specific threat that merits this temporary visa ban. Regardless, Trump and his proxies, including former New York Mayor Rudy Giuliani, have discussed a potential ban on visas for foreign Muslims because they believe radical Islam is the source of anti-American terrorism. Such a ban would be based on fact, not on religion, Giuliani has contended. But critics say the motivation is partly political and not tied to an immediate threat.
Why aren’t the lawyers looking at and using the Federal Court decision in Boston, which is at conflict with ridiculous lift ban decision?
— Donald J. Trump (@realDonaldTrump) February 4, 2017
Trump’s executive order was rolled out poorly and without proper coordination among federal agencies. The government has had to backtrack on a number of cases in which it denied entry initially.
Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision
— Donald J. Trump (@realDonaldTrump) February 4, 2017
Trump knows or realized quickly that his executive order was problematic.
What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?
— Donald J. Trump (@realDonaldTrump) February 4, 2017
Goldsmith says the tweets will add to judges’ doubts “about executive process, integrity, truthfulness, and motivation…. They will also worry a lot about being perceived to cave to executive pressure.”
That makes it more likely that the Ninth U.S. Circuit Court of Appeals or the Supreme Court will invalidate the ban — they will stand up to him — with Trump’s tweets playing an odd role.
He loses, he wins, whatever:
Why on earth would the president want to lose in court?
Assuredly, Trump would rather win. But if he realizes his executive order was botched and his legal case is doomed, he may be using Twitter to set the post-loss stage — in the event of an eventual terrorist attack that has some connection to immigration, Goldsmith says.
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
“If Trump loses in court he credibly will say to the American people that he tried and failed to create tighter immigration controls,” Goldsmith wrote. “This will deflect blame for the attack. And it will also help Trump to enhance his power after the attack.”
Does this theory give Trump too much credit for strategy? It is possible, after all, that the White House counsel has simply done a bad job. The counsel was involved in the botched executive order, after all, and now it can’t even control its client.
Either way, Goldsmith is not the only one pondering this.
When a country is no longer able to say who can, and who cannot , come in & out, especially for reasons of safety &.security – big trouble!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
“As others have observed, Trump seems so impulsive by nature that it is really hard to determine whether he thinks he is being strategic, whether he is actually thinking strategically or whether he just believes his gut will always lead him in the right direction,” said Peter Shane, an Ohio State University law professor and an expert on separation of powers.
One certain thing: These questions, like Goldsmith’s law blog piece, are making the rounds.
“I’ve tweeted it to my friends,” OSU’s Shane admitted.
Our editors found this article on this site using Google and regenerated it for our readers.
