Criminal Justice & the Rule of Law Executive Branch

Does Trump Want to Lose the EO Battle in Court? Or is Donald McGahn Simply Ineffectual (or Worse)?

Jack Goldsmith
Monday, February 6, 2017, 1:00 AM

I’m starting to believe that either Donald Trump wants courts to strike down the Immigration Executive order, or that his White House Counsel is incompetent or ineffectual.

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I’m starting to believe that either Donald Trump wants courts to strike down the Immigration Executive order, or that his White House Counsel is incompetent or ineffectual.

The Immigration EO has a surprisingly strong basis in law but was issued in haste, without proper interagency coordination, without proper notice, without adequate consideration of its implications, and with a media strategy, if it was that, that suggested that the EO was motivated by discrimination against Muslims. These factors combined with the subject matter and scope of the EO to alarm many people and to invite a fierce initial legal reaction from civil society groups, states, and judges across the country.

In the face of the initial legal setbacks, Trump at 5:12 a.m. on Saturday tweeted:

Early the same afternoon, at 12:44 p.m., he added on Twitter:

One hour later, he tweeted:

At 4:48 pm he tweeted:

The next day, yesterday, at 12:39 pm, Trump said on Twitter:

A few minutes later he said:

I would describe the progression of these tweets as follows. The first one takes issue with Judge Robart’s decision, predicts it will be overturned, and questions Robart’s competence (“so-called judge”). Some also interpreted this first tweet, in the words of one credible critic, as “an attack on the independence of the judiciary.” But the tweets that followed the first one, it seems to me, grew progressively more aggressive, for they blame Judge Robart and the judiciary more broadly with significantly weakening American safety. Many “very bad and dangerous people” may be pouring into our country” because of Robart’s ruling, Trump said; Robart “opens up our country to potential terrorists and others that do not have our best interests at heart”; Robart put the country in “peril” and he and the court system are to “blame” if “something happens”; and the courts are making the job of keeping America safe “very difficult.”

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What might lead Trump to criticize Robart and judges for weakening American security? It is possible that he thinks his tweets will pressure the judges to cave and act in his favor. Judges don’t like to be responsible for national security debacles (which explains the deference they often give the political branches in this context), and thus they might worry about Trump’s predictions of a causal nexus between their rulings and a future terrorist attack.

The much more likely result of his tweets, however, is just the opposite. The Executive branch often successfully argues—quietly, in briefs and at oral argument, with citations to precedent—for its superior competence to judges in national security, and for the potentially dangerous consequences that might flow from too much judicial review in that context. But when arguments for deference to the President are made via threatening public tweets before an actual attack, they will certainly backfire. The tweets will make it very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with the significant deference to the President’s broad delegated powers from Congress and to the President’s broad discretion in foreign relations. Judges in the short term will be influenced by the reaction to the EO Immigration order, and by doubts about executive process, integrity, truthfulness, and motivation that the manner of its issuance implies. They will also worry a lot about being perceived to cave to executive pressure. The pressure from Trump, and related events, thus make it more likely—much more likely, in my view—that the Ninth Circuit and, if it comes to it, the Supreme Court will invalidate the EO in some fashion.

Last night I tweeted: “Increasingly apparent—from the way Trump rolled out EO to his attack on courts—that he wants EO struck down. Not just incompetence.” Here is what I meant. The clearly foreseeable consequence of the roll-out combined with Trump’s tweets is to weaken the case for the legality of the EO in court. Why might Trump want to do that? Assuming that he is acting with knowledge and purpose (an assumption I question below), the only reason I can think of is that Trump is setting the scene to blame judges after an attack that has any conceivable connection to immigration. If Trump loses in court he credibly will say to the American people that he tried and failed to create tighter immigration controls. This will deflect blame for the attack. And it will also help Trump to enhance his power after the attack. After a bad terrorist attack at home, politicians are always under intense pressure to loosen legal constraints. (This was even true for near-misses, such as the failed Underwear bomber, which caused the Obama administration to loosen constraints on its counterterrorism policies in many ways.) Courts feel these pressures, and those pressures will be significantly heightened, and any countervailing tendency to guard against executive overreaction diminished, if courts are widely seen to be responsible for an actual terrorist attack. More broadly, the usual security panic after a bad attack will be enhanced quite a lot—in courts and in Congress—if before the attack legal and judicial constraints are seen to block safety. If Trump assumes that there will be a bad terrorist attack on his watch, blaming judges now will deflect blame and enhance his power more than usual after the next attack.

Many people responded to my tweet last night by saying that I was giving Trump too much credit. He is not that clever, they said. His tweets are an angry impulsive reaction, not part of a plan. Perhaps these criticisms are right; I don’t know. But if they are right, then the White House has a different problem (among others): An ineffectual or incompetent White House Counsel.

One person who must bear responsibility for the awful rollout of the EO is White House Counsel Donald McGahn. The White House Counsel is charged with (among other things) ensuring proper inter-agency coordination on important legal policies and with protecting the President from legal fallout. McGahn should have anticipated and corrected in advance the many foreseeable problems with the manner in which the EO was rolled out. And he should have advised the President after his first anti-Robart tweet, and after the other more aggressive ones, that the tweets were hurting the President’s legal cause.

If McGahn did not do these things, he is incompetent, and perhaps we can attribute impulsive incompetence to the President. But if McGahn did do these things—if he tried to put the brakes on the EO, and if he warned his client about the adverse impact of his tweets—then he has shockingly little influence with the President and within the White House (i.e. he is ineffectual). And if McGahn is ineffectual as opposed to just incompetent—if he did, in other words, warn the President about the impact of his tweets and was ignored—then that lends credence to the suspicion that Trump knows the consequences of his actions and wants to lose in court, with the most plausible explanation being that he is planning for after the next attack.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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