Trump's Monday Morning Tweets Cause A Travel Ban Crisis
George Conway — a conservative lawyer (and Kellyanne Conway's husband) — tweeted that Trump's tweets "won't help" get five votes from the Supreme Court.
The Department of Justice isn't able to use White House press secretary Sean Spicer's favorite response to reporters’ questions about President Trump's more questionable tweets: "The tweet speaks for itself."
It's their job to defend Trump's actions and related statements in court — something Trump often makes more difficult, tweet by tweet.
Trump was off and running early Monday morning, with a series of four tweets attacking the Justice Department, the courts, and his own travel ban — the executive order he signed March 6.
The tweets came just days after the Justice Department asked the Supreme Court to resolve the legality of the ban (in favor of the administration, of course) and allow the administration to enforce the ban while the appeal is being heard.
Tweet One: It is a "TRAVEL BAN." In January, Spicer reprimanded the press for calling the first executive order on the topic a travel ban.
Tweet Two: Trump blames the "Justice Dept." for the "watered down" ban — that Trump himself signed.
Tweet Three: Trump tweets that lawyers going to the Supreme Court should "seek" a "much tougher" travel ban — despite that he would have to sign an order doing so.
Tweet Four: Trump calls the courts "slow and political" — despite the fact that Trump and the Justice Department never took the first travel ban to the Supreme Court, instead starting over the process with a second executive order.
Asked about the tweets at the briefing, White House deputy press secretary Sarah Huckabee Sanders said Trump doesn't care what people call the executive order, does not know whether a third "much tougher" version of the travel ban is being considered, and asserted that extreme vetting already "is taking place."
From outside the White House, however, the response to the tweets was unanimous from all points along the legal spectrum: Trump is not helping himself, and, to the contrary, he is making defending the executive order more and more difficult.
George Conway, the Wachtell partner who was rumored for several Justice Department positions (but, David Lat reported on June 2, withdrew from consideration) and is the husband of Trump adviser Kellyanne Conway, weighed in to criticize the president's tweets — an unusually striking move:
Conway initially declined further comment on the matter, but later followed up on Twitter, noting his strong support for Trump, the executive order, and his wife.
He also, though, doubled down on his initial point: "Every sensible lawyer in WHCO [White House counsel's office] and every political appointee at DOJ [would] agree with me (as some have already told me)," he wrote. "The [point] cannot be stressed enough that tweets on legal matters seriously undermine Admin[istration] agenda and POTUS—and those who support him, as I do, need to reinforce that [point] and not be shy about it."
Conservative South Texas College of Law professor Josh Blackman — a strong defender of the legality of the executive order — tweeted, "The President is his own worst enemy and quite possibly the worst client the SG has ever had." (He later followed up with a post at Lawfare on the topic.)
The SG is the solicitor general — the Justice Department's top appellate lawyer. Trump's nominee for the position is former Jones Day partner Noel Francisco. (Conway had been under consideration for the post early in the process as well.) The Judiciary Committee is due to consider Francisco's nomination on Thursday. In the meantime, Jeffrey Wall, is the acting solicitor general. Wall has argued all three appeals of both travel bans.
On the other side of the political lawyers realm, Neal Katyal, the Hogan Lovells partner who is representing Hawaii in its challenge to the travel ban and argued against the Trump administration at the US Court of Appeals for the Ninth Circuit, was practically giddy over the tweets.
He wrote that it was "kinda odd to have the defendant in HawaiivTrump acting as our co-counsel.We don't need the help but will take it!" Later, he trollingly asked whether he and Omar Jadwat, another lawyer challenging the ban, should "cede our 30min at lectern" — the time to argue before the justices at the Supreme Court — to the defendant (as in, Trump) "to make case for us."
Jadwat is the ACLU lawyer for International Refugee Assistance Project v. Trump — the travel ban case in the Fourth Circuit that the Justice Department asked the justices to review. For his part, Jadwat noted that, while Trump expressed his dissatisfaction with the current, "watered down, politically correct" ban, his lawyers — in asking the Supreme Court to review the case — stated that "the President’s actions in response to concerns raised by courts regarding the January Order demonstrate good faith."
Jadwat concluded with what amounted to, more or less, the mirror image of the concern Conway expressed about Trump's tweets.
"If we just wait long enough, will he tweet out a whole brief for us?" he asked.