Michael C. Dorf // 6/6/17 //
President Trump's latest tweetstorm regarding his It-Is-A-Travel-Ban-After-All was widely and correctly viewed by observers as potentially harmful to the effort by the Justice Department to defend the Ban by arguing that it's not a Ban. Indeed, the tweets were even more damaging to his case than generally acknowledged. Most of the discussion in the blogosphere has focused on Trump's use of the word "ban," but as I'll explain below, the real significance of the tweets is that they reaffirm that the Executive Order is a Muslim Ban.
I also want to explore the hypothesis--first floated by Jack Goldsmith in February under the title "Does Trump Want to Lose the EO Battle in Court?" and just now revived by Joseph Fishkin under the mirror image title "Does Trump Want to Win the Travel Ban Cases?"--that Trump is deliberately sabotaging the already weak case for sustaining the travel ban. I'll conclude that this is extremely unlikely. As they say in medical school, when you hear hoofbeats, think horses, not zebras. The most obvious explanation--Trump is an ignorant racist with no impulse control--should dominate more intricate theories.
In case you missed the tweetstorm, you can view it set to music by the president himself via a Facebook video. (Really. You can't make this stuff up.) Let's count the ways in which it's harmful to Trump's case:
1) By insisting on calling the executive order a travel ban after his spokespeople have been insisting that it is merely a temporary pause, Trump undermines the general credibility of people who speak on his behalf, including lawyers.
2) By referring to the travel ban, Trump connects the existing revised executive order to his campaign statements calling for a Muslim ban, thus undermining efforts by government lawyers to distinguish the executive order from the campaign statements.
3) By referring to the revised order as a "watered down" version of the original order, he further draws that connection, indicating that rather than the result of study and analysis by national security experts, the revised version was simply something concocted to get through the courts. Indeed, he says that much in the tweets and in this gem on the FB page promoting the video: "We need the Travel Ban — not the watered down, politically correct version the Justice Department submitted to the Supreme Court, but a MUCH TOUGHER version!" The best that could be said in Trump's defense here might be that he is under the misimpression that the revised executive order is something that the DOJ came up with in litigation, rather than what it is: an order that he himself signed. (Aside: Acting SG Jeff Wall: if you're reading this, maybe you should argue that Trump's tweets don't bear on the meaning of the executive order because he obviously has no idea what an executive order even is, much less what's in any particular one that he signed. You're welcome.)
4) By deriding the courts as "slow and political" Trump cannot have made it more likely that any justices who were on the fence would rule in his favor.
5) But most crucially, and to my mind, not sufficiently discussed, is the timing. This morning's tweetstorm must be understood as a continuation of the tweetstorm that Trump unleashed in response to Saturday night's terrorist attack in London. That earlier fusillade included the idea that the U.S. "need[s] the Travel Ban as an extra level of safety!" But how exactly is the Executive Order supposed to provide safety?
When Trump wrote the foregoing, the nationalities of the London attackers were unknown. In particular, Trump didn't know whether they were nationals of any of the six countries to which restrictions apply per the EO. He did know--or at least assumed--that the attackers were Muslim. Thus, it is a virtually inescapable conclusion that when Trump talks about "the Travel Ban" he means the "total and complete shutdown of Muslims entering the United States" that he touted during the campaign. And so when he says that the EO is a "watered down version" of "the Travel Ban" he can only mean that it is a watered down version of the Muslim Ban. That's why the tweets are so damaging to the government's litigation position. When one considers the timing, they very much reinforce points 2) and 3) above.
Oh, and by the way, it turns out that one of the London attackers was Pakistani. Pakistan is not on the EO list. A second attacker claimed to be from Morocco (also not on the list) and/or Libya (which is on the list). As of this writing, the nationality of the third attacker has not been made public. But it hardly matters. The key point is that in knowing (or believing) the attackers to be Muslims, Trump knew all he needed to know.
[Update: After I wrote the list above, I read Leah Litman's list, which I regard as complementary to the extent that it is not overlapping.]
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Thus, we come to the question of why Trump tweeted what he did. Fishkin hedges a little by saying that Trump has a "strategy . . . even if it is a mostly intuitive one." An intuitive strategy would not require Trump to know what he is doing. He could be stumbling his way into something effective.
And what is that potentially effective something? According to Fishkin, crediting Jack Balkin, Trump aims to "exacerbate political polarization," which will ultimately work to his benefit by keeping his base angry and engaged.
Fishkin notes that the Muslim Ban litigation is potentially win-win for Trump. If he wins in court, he's a WINNER. If he loses, he can demonize the courts and use them as scapegoats if there's another terrorist attack (regardless of the nationality of the perpetrator).
But all of that was always true. If Fishkin is right, then Trump isn't trying to lose the Muslim Ban litigation, so much as he's indifferent to the outcome. Yet even attributing an attitude of indifference strikes me as attributing to Trump far too much rationality. It suggests that his prior attacks on the "so-called judge" and others who invalidated his Travel Ban were not simply Trump in a fit of pique but Trump playing a crafty game in which he really doesn't care about the outcome of litigation but is fanning the flames for his followers. I just don't see how that could have happened.
Trump does not have even a Schoolhouse Rock understanding of how American government works or what is in the executive orders he signs. When I said in the title of this essay that he's not playing ten-dimensional chess or even checkers, but is barely playing peekaboo, I meant it almost literally.
According to one account of childhood development, very young children find the game of peekaboo fun because it seems like a kind of magic. Not yet having learned to differentiate between the self and the outside world, the infant believes that when he cannot see the adult, the adult has vanished. Then the infant's eyes are uncovered and the adult reappears. Magic!
Trump is like that infant. When he learns something that he previously did not know, he announces it to the world as though he has made a great discovery. Health care is complicated! Andrew Jackson was a populist! The phrase priming the pump can be used as a metaphor for monetary policy! Trump didn't know these things before; therefore, his childlike mind reasons, neither did anyone else. Eureka!
A seventy-year-old infant as president can, as we have seen, do great damage to constitutional democracy and the norms that undergird it. But I doubt that he has the capacity to strategize his way into winning by losing in litigation he does not begin to understand.