Lawyers, well aware that handling a complex legal case is not for amateurs, have long believed in an old saying (more colorful than this) that clients who represent themselves take real risks. On Monday, President Trump dispensed some legal advice to the lawyers representing him, and they may now have to try to recover. Their legal adversaries, it is no surprise, were delighted.
In a series of notes on Twitter Monday morning, President Trump discussed his Administration’s pending appeal at the Supreme Court, an appeal in which Justice Department lawyers are trying to defend his March 6 executive order putting new limits on immigration, especially from the Mideast.
His main points:
1. It was a mistake for his legal team to give up on his original executive order and substitute for it a “watered-down, politically correct version.”
2. He wanted his team to seek a “much tougher version” from the Supreme Court.
3. He insisted on calling his plan “a travel ban.”
4. He accused the courts of being “slow and political” in the face of a need to “keep our country safe.”
For weeks, his lawyers have been asking various federal courts, and lately the Supreme Court, to take what the President says seriously if he made statements after taking the oath of office and forming a government. They have argued strenuously against giving any weight to what he said as a candidate – such as his repeated calls back then for a “Muslim ban.”
What Trump said in his presidential tweets on Monday, though, ran counter to what his lawyers have been saying in court. Here are the lawyers’ contrasting points:
1. The changes made between the original version and the second version were done explicitly to satisfy a federal appeals court’s concerns about the original version. The changes in the revision were made at the request of his Attorney General and his Homeland Security Secretary. The President is entitled to be taken at his word in the new executive order over his signature.
2. The new executive order deserves full respect from the courts because it represents the President’s own choices about national security policy, and those are almost never to be “second-guessed” by the courts. (His lawyers would never ask the Supreme Court to come up with a “tougher version,” because they know it has no such power, and, indeed, only has power to uphold or strike down what he ordered.)
3. The provision as the sole issue in the Maryland case before the Justices and one of several issues in the Hawaii case is only a “short pause” in the flow of immigration from the designated six Mideast nations. It is not a prohibition on immigration, since some who seek to come to the U.S. from those countries might qualify for visas to enter.
4. His lawyers’ every word, in every filing in every court reviewing his orders has been respectful of the dignity of the courts, makes no demands but seeks only a resolution within the realm of reason, and conveys an implied willingness to live with the outcome that emerges.
If the Supreme Court agrees to take up the government’s appeal, it will be the task of Acting Solicitor General Jeffrey B. Wall to defend the President and – if asked about Monday’s tweets – to fashion a benign explanation.
There could be two other lawyers in court for such a hearing. In the Maryland case, it likely will be an ACLU lawyer, who argued that case in a federal appeals court. Here is how that lawyer, Omar C. Jadwat, responded on Twitter to the President: “If we just wait long enough, will he tweet out a whole brief for us?”
In the Hawaii case, it likely will be a former Acting Solicitor General, Neal K. Katyal, who argued that case in a federal appeals court. His reaction on Twitter Monday: “Its kinda odd to have the defendant in Hawaii/Trump acting as our co-counsel. We don’t need the help but will take it.”
Those lawyers are to file answering briefs in the Supreme Court next Monday. It seems predictable that some of the presidential tweets will find their way into those filings.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
