When is a travel ban not a travel ban, but really is a travel ban? When the president who signed the executive order steps all over his legal team’s defense of it on social media, that’s when. This morning, Donald Trump gave opponents of his EOs fresh ammunition to argue against the latest version on his favorite communications channel:
Plaintiffs in the lawsuits against both EOs have made questionable use of Donald Trump’s campaign rhetoric to make the claim that the pause in admissions for nationals of six countries has a broadly discriminatory intent. The White House’s legal team has argued all along that the reliance on campaign rhetoric is illegitimate, and that what matters is actual intent now. Trump just gave the opposing legal teams — and the courts — a replacement for all that campaign rhetoric with today’s Twitter tantrum.
By the way, it’s been over four months since the issuance of that first EO, which claimed a need for a 90-day pause to improve vetting of people from the seven nations in question (originally including Iraq). If all Trump needed was 90 days to fix this problem — and he’s claiming that we now “are EXTREME VETTING people coming into the U.S.” — why do we need the “ban” any longer? Strengthening the vetting was the express purpose of the EOs. If that’s been accomplished to Trump’s public satisfaction, the Supreme Court will undoubtedly ask, why still try to keep the admission block in place? [See update on this point.]
For that matter, the DoJ and the White House have consistently argued that it’s not a “travel ban,” but rather a temporary pause in admissions. Trump has mooted that defense of the EOs, too, by making his intent to impose a travel ban rather than a more well-considered temporary review. Trump has left his legal team with nowhere to hide. After today’s tweets, who wants to bet that the Supreme Court review winds up being a unanimous decision to permanently return to the status quo ante?
And why blame the DoJ for the language in the ban, anyway? Jeff Sessions didn’t sign the EOs. Those came from Trump himself. The first EO was so problematic in practice that the White House had to issue a series of clarifications that all but contradicted some of the language, so the need for a replacement EO came from deficiencies in the first one. The reason the DoJ is defending the second EO and not the first is because Trump superceded the first with the second.
The only real problem originating in the DoJ was the disorganized defense of the first EO in the initial challenge. Even that was a problem created by Trump, who hadn’t put a legal team together before issuing an EO that was sure to be challenged immediately. Three months ago, Trump had reportedly selected Noel Francisco to be Solicitor General, but still has not had the Senate confirm that choice. [see update] (Jeffrey Wall is representing the White House as acting Solicitor General.)
This mini-tweetstorm is a perfect demonstration why attorneys advise their clients to keep their mouths shut about lawsuits and legal fights. When Neil Gorsuch writes the opinion for the unanimous decision that shuts down these EOs, don’t act too surprised.
Update: In my original post, I wrote that Trump had not yet picked a Solicitor General, but he did select Noel Francisco for the post in early March. That was, however, after the issuance of the “travel ban,” and to this day Francisco still has not yet been confirmed by the Senate.
Update: Gabriel Malor e-mails to remind me that the Hawaii federal court blocked the study of vetting options for DHS along with other parts of the second EO. That calls into question Trump’s claim above that they have already imposed “EXTREME VETTING” on entries, but it’s also a good reminder that the clock may not have started on that 90-day review, too.