It is more dangerous to be Donald Trump’s friend than his enemy.
Monday, acting solicitor general Jeffrey B. Wall found this out the hard way, as he joined White House Press Secretary Sean Spicer and Deputy Attorney General Rod Rosenstein under the Trump bus.
On Thursday of last week, Wall had filed a petition for certiorari in International Refugee Assistance Program v. Trump. In that case, a district judge in Maryland had blocked Trump’s Executive Order freezing admission to the U.S. of nationals of six majority-Muslim countries. The en banc Court of Appeals then affirmed the injunction; the court’s majority opinion by Chief Judge Roger Gregory said that the order “in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” Drawing in part of Trump’s own statements before and after taking office, the court concluded that the order is, in fact, aimed at excluding Muslims from the U.S. because they are Muslims, and thus violated the First Amendment’s prohibition of “an establishment of religion.”
The heart of Wall’s argument is as follows: (1) The executive order represents the president’s own considered judgment about the needs of national security, for which the Constitution makes him uniquely and personally responsible; (2) the order is not a “Muslim ban” or indeed a “ban” of any kind, merely “a temporary 90-day pause (subject to individualized waivers) on the entry of certain foreign nationals from six countries”; (3) this order—unlike the first order hastily issued at the end of Trump’s first week in office—makes no reference to religion and is based purely on national security grounds; (4) the second order—again unlike the first—was entered “based on the recommendation of the Secretary of Homeland Security, in consultation with the Secretary of State and Director of National Intelligence” and after review by the affected agencies; (5) the president’s previous statements about a “Muslim ban” were “campaign-trail statements by a political candidate” that he has not repeated since becoming president and at any rate (6) presidential statements of any kind shouldn’t be considered—only the words of the order themselves.
It’s a very good argument; left to itself, it would have a reasonable chance of prevailing at the Supreme Court.
But “left to itself,” in the world of Trump, is a far-fetched idea.
Consider Trump’s tweets Sunday and Monday in the wake of the terrorist attack in London:
We need to be smart, vigilant and tough. We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!— Donald J. Trump (@realDonaldTrump) June 3, 2017
We must stop being politically correct and get down to the business of security for our people. If we don't get smart it will only get worse— Donald J. Trump (@realDonaldTrump) June 4, 2017
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!— Donald J. Trump (@realDonaldTrump) June 5, 2017
The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.— Donald J. Trump (@realDonaldTrump) June 5, 2017
The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!— Donald J. Trump (@realDonaldTrump) June 5, 2017
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!— Donald J. Trump (@realDonaldTrump) June 5, 2017
So, here is the president’s commentary on this lawyer’s solemn assurances to the court: (1) the lawyers lied: it is a “travel ban”; (2) it’s not the president’s personal considered judgment at all, it was written—badly—by wimpy Justice Department lawyers; (3) despite what the lawyers said, it is in fact a “watered-down” version of the explicitly religious ban; (4) if the government gets approval of the “watered-down” version it will push for something stronger; (5) never mind the brief’s “political correctness,” we know what the ban really is about; and (6) the Supreme Court had damned well better get out of my way or I will—as I did with the courts below—attack its very legitimacy.
All in all, Trump could not have more directly undermined Wall’s petition if he had been trying to. That fact was cheerfully acknowledged by former acting solicitor general Neal K. Katyal, who now represents Hawaii in a companion challenge to the travel ban now pending before the Ninth Circuit. Moments after the tweetstorm, Katyal tweeted back:
Its kinda odd to have the defendant in HawaiivTrump acting as our co-counsel.We don't need the help but will take it! pic.twitter.com/8ehqkLkOY2— Neal Katyal (@neal_katyal) June 5, 2017
I have thought all along that the Supreme Court terrain was better ground for the administration than courts below. Many of the justices are used to deferring to the executive, and will be sympathetic to Wall’s argument that the president’s informal statements should not be used to peer into his motives in issuing the order.
But Justice Anthony Kennedy likes to quote Oliver Wendell Holmes Jr.’s aphorism, “Even a dog distinguishes between being stumbled over and being kicked.” A president who announces to 31 million followers, “I am kicking the courts and will be back to kick them more if they don’t bow to me,” might try the patience of even the most deferential judge.
After Trump’s tweetstorm, Wall was in court Monday morning to hear the latest decisions. Facing courts in bad moments is a lawyer’s duty. “Never,” the late Lord Snow once wrote, “be too proud to be present.” Wall’s obstreperous client has left him with one and only one argument, as set forth in the petition: “the ‘presumption of regularity’ that attaches to all federal officials’ actions, magnified here by respect for a coordinate branch, counsels resolving uncertainty in favor of, not against, the validity of official Executive action.”
There surely comes a moment when the “presumption of regularity” is breached beyond repair. History may record that June 5, 2017, was the Trump Administration’s Movantik moment.