Derek Reinbold , Ryan Hayward  //  6/6/17  //  Daily Update

Yesterday, President Trump tweeted several times about the revised travel ban. Many experts concluded that these statements undermine critical parts of DOJ's legal position before the Supreme Court. Debate has ensued over whether this was deliberate or inadvertent. The Trump Organization announced plans for a new three-star hotel chain with “patriotic flair,” which will make its debut in Mississippi. Analysis continues of the President's revised contraception rule and decision to withdraw from the Paris Agreement. It has been reported that President Trump will not invoke executive privilege to try to block former FBI director James Comey’s testimony from testifying before the Senate Intelligence Committee this Thursday.

IMMIGRATION

In a series of early-morning tweets, President Trump said it was a mistake to revise his original entry ban, that it should be called a “travel ban,” and that the administration should return to a “much tougher version” rather than its current “watered down, politically correct version” (NYT, Politico, WaPo, ABA Journal, New Yorker).

• President Trump’s tweets undermine a number of arguments critical to the administration’s legal defense of the ban,  explains Leah Litman at Take Care.
• The President’s statements provide more evidence of anti-Muslim animus, argues Corey Brettschneider (Take Care).
• Many commentators suggest President Trump’s statements will harm the government’s pending appeal before the Supreme Court (WaPo, The Hill, The Atlantic).
• George Conway, who recently withdrew from contention to run the Civil Division at DOJ, agrees (WaPo).
• Laurence Tribe (CNN), Dahlia Lithwick (Slate), and Noah Feldman (Bloomberg) concur.
• The real significance of President Trump’s morning tweets is that they reaffirm that the executive order is a Muslim Ban, argues Michael Dorf at Dorf on Law.
• At Volokh Conspiracy, Eugene Kontorovich takes the opposite view.
• The Washington Post points out the contradictions between each of the tweets and the government’s arguments before the Supreme Court.
• At Lawfare, Josh Blackman surveys the various implications of the President’s statements.
• At Just Security, Daphne Eviatar points out that President Trump’s tweet claiming “[i]n any event we are EXTREME VETTING . . .” undermines the stated purpose for the revised entry ban.
• Trump’s statements directly contradict the White House’s repeated insistence that the ban was not a “travel ban” (WaPo).
• At Balkanization, Gerard N. Magliocca poses the question of what to do when the President’s statements contradict arguments made in a brief to the court.
• Also at Balkanization, Joseph Fishkin suggests the President’s tweets might indicate a desire to lose the case before the Supreme Court.
• In response, Michael Dorf (Dorf on Law) argues President Trump does not have “the capacity to strategize his way into winning by losing in litigation.”

Aside from the President’s tweets, discussion continues about the pending entry ban case before the Supreme Court.

• At The Volokh Conspiracy, Sam Bray suggests national injunctions, such as those issued in the entry ban cases, present serious constitutional and policy problems.
• At Empirical SCOTUS, Adam Feldman argues the Supreme Court will seek to make the narrowest ruling possible.
• At Cato at Liberty, David Bier argues that even the ban’s facial justification is faulty.

CIVIL RIGHTS

CBS Sunday Morning’s reporting on the history AIDS epidemic is dangerous given the threats posed to AIDS research by Trump Administration (Rewire).

Senior Democrats are circulating a memo outlining certain Health and Human Services officials’ “misinformation about reproductive health care” (Rewire).

DEMOCRACY

Humans, rather than bots, should be blamed for spreading pro-Trump misinformation on Twitter (Buzzfeed News).

FBI and other law enforcement surveillance documents painted Standing Rock protesters as “desperate and . . . not looking for a peaceful solution” (The Intercept).

JUSTICE & SAFETY

At Take Care, Leah Litman and Helen Klein Murillo argue that President Trump’s statements on the London attacks providing disturbing insight into how he might react to similar events in the United States.

• President Trump continued to attack London’s mayor via Twitter (Politico, The Intercept).

President Trump’s national security team was “blindsided” by his failure to reaffirm commitment to Article 5 collective self-defense at the NATO summit in May (Politico).

• In Australia, Secretary of State Tillerson and Secretary of Defense Mattis sought to downplay fears of U.S. isolationism (WaPo).
• In a speech, National Security Adviser H.R. McMaster claimed President Trump’s first foreign trip was successful in efforts to stamp out terrorism in the Middle East (WaPo).

President Trump’s announcement that his administration concluded a $110 billion arms deal with Saudi Arabia is fake news, writes Bruce Riedel at Lawfare.

CONFLICTS OF INTEREST

President Trump is not built for the challenge of separating his public responsibility from his private legal interests, writes former White House Counsel Bob Bauer at Lawfare.

The Trump Organization announced plans for a new three-star hotel chain with “patriotic flair,” which will make its debut in Mississippi, a state that President Trump won by 18 points (NYT).

REGULATION

In pulling the United States out of the Paris Climate Accord, President Trump may have galvanized more effective political opposition in support of climate change initiatives—a net gain for his opponents, argues Ann Carlson at Take Care.

• Governors, mayors, and businesses have all committed to uphold the goals of the Paris agreement, terming their effort “America’s Pledge” (The Hill).
• Tech companies like Apple, Facebook, and Google have committed to the same goals, calling their joint initiative “We Are Still In” (The Hill).
• A senior diplomat at the U.S. Embassy in Beijing has resigned in response to the U.S. withdrawal from the accord (WaPo).

The Trump administration’s draft contraception rule has no legal foundation—neither RFRA nor the Public Health Service Act gives HSS grounds to allow employers to drop contraceptive coverage, writes Nick Bagley at Take Care.

An in-depth New York Times piece details the Trump administration’s signals that it would pull back OSHA regulations like the Obama-era beryllium rule (NYT).

The Trump administration is set to allow several companies to use seismic air guns to search for oil and gas reserves beneath the Atlantic Ocean floor, a move that the Obama administration had blocked (The Hill).

Drug overdose deaths are now the leading cause of death for Americans under age 50 (NYT).

CHECKS & BALANCES

House Democrats pushed for answers to whether the Trump administration has instituted a new policy not to respond to oversight requests from Congress unless they are signed by senior Republicans (The Hill).

REMOVAL FROM OFFICE

Lawfare offers a “premature primer” on the mechanics of impeachment proceedings (Lawfare).

RUSSIAN INTERFERENCE

President Trump will not invoke executive privilege to try to block former FBI director James Comey’s testimony from testifying before the Senate Intelligence Committee this Thursday (NYT, WSJ).

• Last week, Noah Feldman at Bloomberg, Charlie Savage at NYT, as well as Jack Goldsmith on Twitter all concluded that President Trump could not block Comey’s testimony in any event.

A top-secret National Security Agency document came to light; the document offers the most detailed U.S. government account of Russian interference in the 2016 presidential election to date (The Intercept).

And that’s our update today!  Thanks for reading.  We cover a lot of ground, so our updates are inevitably a partial selection of relevant legal commentary.

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