Trump’s Tweets Have Been A Legal Disaster For The Justice Department

The White House has said President Trump’s tweets are official statements. Judges are treating them as such as they repeatedly rule against his administration.

The first mention of @realDonaldTrump in a court ruling appeared on Sept. 14, 2015.

The case had nothing to do with Donald Trump, who at the time was just a few months into his presidential bid. The plaintiff, June Smith, had written a book, and claimed one of her detractors had, among other things, created a fake Twitter account — @RealJuneSmith — to post false information about her.

A federal judge in New Hampshire disagreed with the defense that the word “real” in the Twitter handle was a sign it was fake. In a footnote, the judge listed a few examples of legitimate Twitter accounts with the word “real”: Boston sportscaster Jack Edwards (@RealJackEdwards), singer Tori Amos (@therealtoriamos), basketball player Lamar Odom (@RealLamarOdom), and Donald Trump.

It was a simpler time. In his first year in office, Trump’s unfiltered commentary on Twitter about the news of the day has repeatedly caused problems for the Justice Department lawyers defending his actions in court. The White House has said Trump’s tweets represent official statements by the president, and judges have treated them as such.

Trump’s tweets get around what is usually a near-impossible task for anyone suing the government — forcing the president or even senior-level officials to testify at a deposition or in court. Trump’s tweets offer direct insight into the president’s thinking, saving his critics the trouble of a legal fight over whether they can question him.

Other presidents commented on issues that ended up in court, but Trump is unusual in that it appears he isn’t coordinating with government lawyers, said Neil Eggleston, who served as former President Barack Obama’s White House counsel. Eggleston said Obama would consult with the counsel’s office to make sure what he said publicly aligned with the government’s legal stance.

A search of federal and state court cases yielded zero results for rulings that cited Twitter handles Obama used while he was president, @BarackObama and @POTUS, and BuzzFeed News did not identify any court opinions that otherwise referenced Obama’s tweets. BuzzFeed News found eight opinions since January 2017 that included Trump’s Twitter handle “@realDonaldTrump,” and 14 more that referred to the president’s tweets or his account.

“The problem with President Trump is that he continues to make statements in his tweets that are not reflective of the position that the government is going to take in litigation,” Eggleston said. “It’s only relevant if there’s a disparity between the litigation position and what the president has said, and most presidencies are disciplined enough that they don’t have disparities.”

A Justice Department spokeswoman declined to comment. A White House spokeswoman did not return a request for comment.

Trump’s tweets offer direct insight into the president’s thinking, saving his critics the trouble of a legal fight over whether they can question him.

Legal scholars debate the weight of presidential tweets — a recent Harvard Law Review article concluded that Trump’s July tweet announcing an end to transgender military service lacked the legal “status” of a presidential memorandum — but there’s been little pushback to the idea that judges can look at tweets to glean the president’s thinking.

“There's an emerging consensus that where the President's words might go to the President's intent, they're fair game in cases in which the challenge alleges some impermissible intent on the part of the President,” Kate Shaw, a professor at Benjamin N. Cardozo School of Law who has studied the subject, told BuzzFeed News in an email.

Judges cited Trump’s tweets in blocking his travel ban orders and his decision to bar transgender people from serving in the military. On Jan. 9, a federal judge in San Francisco ordered the administration to resume accepting renewal applications for the Deferred Action for Childhood Arrivals, or DACA, program, and cited Trump’s tweets in his decision.

Finding there was a public interest in partially reviving DACA while legal challenges to the administration’s decision to end the program went ahead, US District Judge William Alsup quoted one of Trump’s tweets from Sept. 14, 2017, a week after the administration announced the DACA wind-down.

Trump tweeted: “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!.....”

Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!.....

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

Alsup wrote: “On this point, we seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended.”

The president’s tweets have cropped up in a variety of other cases. A new challenge to Guantanamo Bay detentions focuses on a Trump tweet from Jan. 3 in which he said “there should be no further releases.” The challengers argue that a blanket no-release policy is unlawful. A National Security Council spokesperson told BuzzFeed News that decisions about terrorists “are made on a case-by-case basis.”

There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield.

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

“As long as [Trump] likes to express his views like that and give his particular point of view and his mindset, he is going to continue to undermine — whether he cares or not is anyone’s best guess — his own government’s legal arguments,” said Bradley Moss, a lawyer involved in lawsuits that invoked Trump’s tweets in arguing for the release of government records.

“A different genealogy”

Judges routinely quoted Trump’s tweets in blocking enforcement of his administration’s travel bans. The Justice Department argued the president’s orders were not the result of anti-Muslim bias, but several courts noted Trump’s Dec. 7, 2015, tweet promoting a statement on his campaign website that called “for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” In the tweet, Trump called it a “very important policy statement.”

Just put out a very important policy statement on the extraordinary influx of hatred & danger coming into our country. We must be vigilant!

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

In a June 12, 2017, opinion from the US Court of Appeals for the 9th Circuit blocking the second ban, the judges cited a June 5 tweet from Trump that referred to “dangerous countries” in defending the need for a ban. They found the tweet undermined the government’s argument that the travel suspension was necessary because allowing in nationals from majority-Muslim countries covered by the ban would harm US interests.

That's right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won't help us protect our people!

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

“Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s ‘travel ban,’” the court wrote in a footnote, referring to the June 5 tweet.

With the third travel ban, the Justice Department argued that the presidential proclamation Trump signed on Sept. 24 was the result of an exhaustive review of immigration policies and practices of foreign governments. But US District Judge Theodore Chuang in Maryland wrote in an Oct. 17 opinion that the public, through Trump’s tweets, witnessed “a different genealogy” in which Trump repeatedly expressed a desire to adopt a tougher version of previous travel bans blocked by the courts.

In a separate June 5 tweet, Trump wrote: “The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!”

The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

Chuang wrote that that June 5 tweet revealed that before Trump received reports from the agency review process — the first report came in on July 9, a month after Trump’s tweet, the judge noted — “the President had already decided that the travel ban would continue.”

The Justice Department pointed to a speech that Trump gave in Saudi Arabia in May 2017 as proof that he didn’t harbor anti-Muslim sentiments, but Chuang wrote that Trump hadn’t directly walked back his campaign calls for a ban on Muslim immigration. And Chuang noted that Trump in August tweeted what appeared to be an endorsement of an unverified story about a general who purportedly killed Muslims using “a method hostile to Islam” — bullets dipped in pig’s blood.

Study what General Pershing of the United States did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

“There is no record of public statements showing any change in the President’s intentions relating to a Muslim ban,” Chuang wrote.

A federal judge in Hawaii also issued an order on Oct. 17 blocking enforcement of the third travel ban, and that was upheld by the 9th Circuit in a Dec. 22 decision. The 9th Circuit put its ruling on hold pending review by the US Supreme Court. The US Court of Appeals for the 4th Circuit heard arguments on the government’s appeal of Chuang’s opinion in early December, but has yet to issue an opinion.

“Unqualified tweet of new policy”

Trump’s decision to announce via Twitter on July 26 that transgender individuals would no longer be allowed to serve in the military led judges in three courts to block the administration from enforcing the ban.

Trump announced the policy change in a series of three tweets:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow......

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

....Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming.....

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

....victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

On Oct. 30, a federal judge in Washington, DC, wrote that the circumstances surrounding the president’s announcement — that it was revealed “abruptly” on Twitter without going through a more formal review process — “provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”

"As long as [Trump] likes to express his views like that and give his particular point of view and his mindset, he is going to continue to undermine ... his own government’s legal arguments."

On Nov. 21, a federal judge in Maryland wrote, “A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.”

And on Dec. 11, a federal judge in Seattle rejected the Justice Department’s argument that the policy change was entitled to deference by the courts. The judge wrote that “the prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation.”

The Justice Department is appealing all three rulings. Although the government is fighting these cases, the military is now permitting transgender military recruits after two appeals courts declined to put lower court injunctions on hold while the cases go forward.

Taking “judicial notice”

Alsup’s Jan. 9 order partially reviving DACA came in a set of five consolidated lawsuits in California challenging the Trump administration’s decision to end the Obama-era program, which provided temporary protection against deportation for young undocumented immigrants. The president’s Sept. 14 tweet supporting DACA recipients wasn’t the only tweet Alsup cited. He also took “judicial notice” of a Dec. 29 tweet from Trump, over objections from the Justice Department.

Trump tweeted: “The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our Country at all cost!”

The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL a…

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

The Justice Department argued the challengers couldn’t rely on information outside the formal administrative record to support their claim that the Trump administration’s public explanation for rescinding DACA — that it was an unlawful action by the Obama administration — was a pretext, and that the real reason was so Trump could get leverage to negotiate border wall funding.

Alsup wrote: “One such possibility suggested by plaintiffs is that the rescission was contrived to give the administration a bargaining chip to demand funding for a border wall in exchange for reviving DACA. A presidential tweet after our hearing gives credence to this claim.”

The Justice Department announced on Jan. 16 that it planned to ask the US Supreme Court to review Alsup’s decision, rather than wait for the 9th Circuit to first hear the case. Attorney General Jeff Sessions said in a statement that the reason for the move was “so that this issue may be resolved quickly and fairly for all the parties involved.”

Trump has taken to Twitter to criticize courts that rule against him, a practice the president’s critics have warned threatens the judiciary’s independence. One day after Alsup’s ruling, he tweeted a jab at the 9th Circuit: “It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts.”

It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) al…

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

Official acknowledgement?

Journalists and government watchdog groups suing for records from the Trump administration, especially related to the investigation into Russian interference in the 2016 election, have pointed to Trump’s tweets as “official acknowledgement” of documents the government refuses to release or admit exist.

Federal agencies can withhold government records if they qualify for exemptions under the Freedom of Information Act, including if release could interfere with an ongoing investigation. A public acknowledgement of those records by government officials can overcome an exemption, however.

In a case about a FOIA request for records related to an unverified report alleging ties between Russia and the Trump campaign — commonly referred to as the Trump “dossier” — a federal judge in Washington ruled on Jan. 4 that Trump’s tweets and other public statements weren’t specific enough to qualify as “official acknowledgement” of the documents sought.

Lawyers had argued that to the extent Trump called the dossier fake in his tweets or elsewhere, the court should consider that as “official disclosure” that Trump somehow knew that the allegations in the dossier had been discredited. But US District Judge Amit Mehta wrote that it wasn’t clear the tweets were based on information Trump got from the intelligence community, as opposed to responding to news reports.

Other FOIA cases invoking Trump’s tweets are pending before different judges in the US District Court for the District of Columbia, the main forum for federal public records cases. Moss said he expected the body of law to grow as more judges grapple with the issue.

“The courts are going to be very cautious in how they handle what the president says, specifically the extent to which he is simply riffing or engaging in political commentary as opposed to actually disclosing official government information and acknowledging actual government activities,” Moss said.

“Vague and simplistic”

Efforts to invoke Trump’s tweets in court have been unsuccessful in a few other cases. A federal judge in Alabama ruled in October that Trump’s decision to ban transgender military service and his tweets about the ban didn’t violate the rights of a transgender veteran who wasn’t directly affected by the policy change.

In February, a federal judge in Washington, Colleen Kollar-Kotelly — one of the judges who cited Trump’s tweets in blocking the transgender military service ban — rejected arguments raised by a Venezuelan native seeking action on his asylum petition that he was harmed by Trump’s comments about immigration on Twitter.

Cheryl Jacobus, a Republican political strategist and commentator, sued Trump and former Trump campaign manager Corey Lewandowski in the New York State Supreme Court, claiming they defamed her in public statements, including two of Trump’s tweets. After Jacobus made critical comments about Trump’s campaign on CNN in February 2016, Trump tweeted that Jacobus had “begged” the campaign for a job and went “hostile” when they said no.

Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!

@realDonaldTrump via Twitter / Via Twitter: @realDonaldTrump

Jacobus argued the tweets were defamatory because they implied she made the comments on CNN as revenge for being turned down for a job, which she said wasn’t true. In dismissing the lawsuit, the judge wrote in a Jan. 9, 2017, opinion that a “reasonable reader” would interpret the tweets and other comments at issue as opinion. An appeals court upheld the ruling on Dec. 12.

Trump’s tweets, “necessarily restricted to 140 characters or less, are rife with vague and simplistic insults … all deflecting serious consideration,” the judge wrote. ●

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