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Trump tweets hurt his travel ban case

By David G. Savage Tribune Washington Bureau (TNS) Published: June 6, 2017 4:00 AM

WASHINGTON -- President Donald Trump's lawyers found themselves undercut by their client Monday when the chief executive tweeted that he wanted a "much tougher version" of a "travel ban," and "not the watered down, politically correct version they submitted" to the Supreme Court last week.

In four tweets posted between 5:25 a.m. and 5:44 a.m., the president slammed his Justice Department for abandoning the "original Travel Ban," which was blocked by judges in February after it caused chaos at airports across the nation.

"In any event, we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!" Trump wrote.

That claim about vetting may come as news to the justices. In their appeals, Justice Department lawyers have urged the high court to act on an emergency basis to revive the travel order.

Speedy action was needed precisely to allow the government to develop new vetting procedures for people seeking to enter the U.S., the lawyers said. The process of coming up with new vetting procedures was put on hold when lower-court judges blocked Trump's order from taking effect, they told the high court.

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Legal experts said Trump's latest comments not only undercut the government's legal strategy, but also cast doubt on the need for the Supreme Court to intervene.

"They said this was a matter of urgency. But if they are already doing the extreme vetting, why do you need an order from the court?" asked Josh Blackmun, a Texas law professor and legal blogger.

"I don't envy the solicitor general," he added, referring to the government lawyer who represents the administration at the Supreme Court.

The lawyers on the other side, fighting the Trump team in court, were quick to say they were pleased by the president's comments.

"It's kinda odd to have the defendant in Hawaii v Trump acting as our co-counsel," Neal Katyal, the attorney for a group of West Coast plaintiffs, said in a tweet of his own. "We don't need the help but will take it!"

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Omar Jadwat, the attorney for the American Civil Liberties Union, said Trump had "undercut the picture the government has been trying to paint."

Lawyers for the government "have made a diligent effort to demonstrate" that the travel order "was not about religious animus," he said, nor was it an effort to fulfill Trump's campaign pledge to enact a "Muslim ban." But Trump's tweets belie those claims, he added.

"It shows that the ban is a ban, and that's the goal. It is not about developing new vetting procedures," he said.

Next week, the ACLU lawyers will file a formal response in the Supreme Court, and Jadwat said he had not yet decided on how to handle the latest tweets. "They certainly seem relevant," he said.

Even a notable administration supporter joined the criticism of Trump's tweeting. George Conway, a prominent New York lawyer who was considered for two top Justice Department posts and is the husband of White House adviser Kellyanne Conway, took to Twitter to say that Trump's words "won't help" the solicitor general win five votes at the high court.

Conway followed up with several tweets later in the day in which he said that he still "very, very strongly" supports Trump and his administration.

But, he added, "The point cannot be stressed enough that tweets on legal matters seriously undermine Admin agenda and POTUS -- and those who support him, as I do, need to reinforce that pt and not be shy about it."

Another senior Republican legal figure issued a more scathing assessment of Trump's statements.

"The impulsive, uncontrolled, ill-informed President infects the legal soundness of everything his administration does," Jack Goldsmith, a Harvard law professor who served as a top Justice Department official under George W. Bush, wrote on Twitter.

"Everything else Executive would normally win will be much, much harder," he added.

Last week, Justice Department lawyers filed a lengthy appeal at the high court that sought to minimize the impact of Trump's travel order. They said the revised version of the order called for a limited and "temporary pause" for certain travelers from six countries, not a travel ban.

But in his tweets on Monday, Trump said he did not agree with his Justice Department or with how it characterized what he planned to do.

"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 proclaimed.

"The Justice Department should have stayed with the original Travel Ban," not the scaled-down version that is now before the high court, he added.

The travel order saga began on Dec. 7, 2015, when then-candidate Trump issued a news release calling "for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on."

When he issued the first version of his travel order, on Jan. 27, one week after taking office, opponents called it a thinly disguised effort to enact that religious-based ban on travel. As such, it violated the Constitution's guarantee of freedom of religion, they said.

Federal judges quickly blocked the first travel order from taking effect.

After weeks of vowing to take the case to the Supreme Court, Trump backed away in March, issuing a revised version of the travel order that retreated from many of the controversial parts of the first version.

The individuals and groups who challenged the revised order, however, say that it remains motivated by Trump's desire to discriminate against Muslims.

Last month, the 4th Circuit Court of Appeals ruled against the revised order. The ruling leaned heavily on Trump's statements as a candidate, saying that they provided evidence about the president's true motivation.

The Supreme Court is expected to decide in a few weeks whether to hear the government's appeal of that 4th Circuit ruling, perhaps in the fall, and also whether to allow Trump's order to take effect in the meantime.

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How much attention the justices will pay to Trump's latest remarks remains unknown, but at least some legal experts wondered if Trump was already anticipating a defeat.

"His tweets are so counterproductive that one has to wonder if he wants to lose the case and gain an issue," Walter Dellinger, who served as acting solicitor general in the Clinton administration, wrote in an email.

"If he won a 90-day ban to do a review of visa procedures, that study might not come up with anything useful. Then what does he do? But if he loses the case, he can always blame the judges for anything bad that happens," Dellinger said.

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