Trump Tweets Undermining Message, Travel Ban Prospects

WASHINGTON (CN) - Digging himself in deeper, President Donald Trump continued on Tuesday undermining the Supreme Court defense of his order banning travel from six nations by tweeting that his message is “honest and unfiltered.”

Despite mounting criticism and concern, the president on Tuesday insisted the tweets he sends from his smartphone are his direct link to the American people.

"People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!" Trump tweeted on Monday.

A key part of the fight brewing in the nation's highest court over Trump's executive order is the intent behind it, with civil rights groups and states saying it is meant to keep Muslims from entering the country and the Trump administration insisting it is simply a matter of national security.

Previous court decisions blocking the order have cited statements from Trump and his associates made about the policy, most notably a statement from former New York City Mayor Rudy Giuliani claiming the president asked him how to legally put in place the ban on Muslim immigration Trump called for in the campaign.

Trump administration lawyers have since attempted to downplay the importance of these statements, but the tweets Trump posted on Monday morning could undermine that effort, legal experts told Courthouse News.

"It's hard to see how they help him and it seems pretty clear that they hurt him,"  Michael Gerhardt, a constitutional law professor at the University of North Carolina said in an interview. "Obviously they reveal some, I guess, disconnect between Trump and the lawyers who are working for him and his administration. It undercuts some of the legal arguments they've been making and seems to support or reinforce some of the arguments made by the challengers."

Immediately after Trump's tweets, former Solicitor General Neal Katyal, who is on the legal team for Hawaii's challenge, took to Twitter himself to thank the president for helping his case.

"It's kinda odd to have the defendant in HawaiivTrump acting as our co-counsel," Katyal tweeted on Monday. "We don't need the help but will take it!"

Trump's insistence on calling the order a "travel ban" in a string of tweets on Monday morning hearken back to his call during the presidential campaign for a "total and complete shutdown of Muslims entering the United States," said Michael Dorf, a law professor at Cornell University.

But equally as problematic for Trump's legal team is a tweet from shortly after a terrorist attack in London on Saturday night when Trump said "we need the courts to give us back our rights" and that "we need the Travel Ban as an extra level of safety."

At the time of Trump's tweet it was not clear whether the people who conducted the attack were from countries covered in the executive order, which to Dorf provides a "window into the president's conception of what the executive order is."

"What's the relevant category? Relevant category is religion and that's pretty damning to his defense of the order," Dorf said.

Police have since said that one of the attackers claimed to be Moroccan and Libyan who until recently was living in Dublin.  Another of the attackers was born in Pakistan, which is not on the list of banned countries, while a third was Moroccan-Italian and also not subject to the order.

If the Supreme Court agrees to hear the case, the government lawyers defending the order will have an uphill climb to downplay the importance of Trump's tweets, Dorf and Gerhardt agreed. They will likely try to point to the comments as purely political, rather than concrete policy statements.

"I think they will continue to do what they've been doing, which is to say don't look at what the president tweets or says, that's just political rhetoric, that's not relevant to the way the policy works," Dorf said in an interview.

But that argument could be difficult, especially with numerous past cases where courts used comments from politicians to judge the intent of a piece of legislation. Dorf particularly pointed to the Supreme Court's 1987 decision in Edwards v. Aguillard, when the court used statements from the supporters of a law requiring schools to teach creationism to find it violated the establishment clause.

"It's clear that both under the religion clause case law and the equal protection case law, there are circumstances in which illicit subjective intent can be sufficient to invalidate some government action," Dorf said.

Justice Antonin Scalia was one of two holdouts in the Edwards decision and was highly critical of looking to statements from legislators to assess laws from the bench. This lead Dorf to speculate conservative justices like Justice Clarence Thomas or Justice Neil Gorsuch who fit the Scalia mold could downplay Trump's comments in the legal dispute, but he said it is not clear if that split will actually appear.

Even with Trump's tweets giving an apparent advantage to the groups challenging Trump's executive order going forward, Gerhardt said they will have to be careful about how much emphasis they put on the statements over other aspects of the case.

"They have their own credibility at stake, and not just their own lawyerly credibility, they're operating within the ethical rules themselves so they don't want to overextend their arguments, make too much out of this," Gerhardt said. "Another thing happening here has to do with the possible difference between trying to make you case in public and making your case in court. Those are two different things."

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