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, 8:22 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:

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Jack Goldsmith

Jack Goldsmith

@jacklgoldsmith
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Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. 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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