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Should Judges Pay Attention To Trump’s Tweets?

This is the Trump Docket, where we track some of the most important legal cases of the Trump presidency and how their results could shape presidential power. Questions, comments, or thoughts about cases to cover? Email us here.

President Trump’s words have a habit of coming back to haunt him — particularly in courtrooms. His unfiltered public statements on Twitter and elsewhere have been a gift to the organizations and advocates fighting a range of controversial policy decisions like his proposal to ban most transgender people from serving in the military and the revocation of a temporary form of legal status for migrants who fled violence and natural disasters. Litigants have drawn on Trump’s comments to argue that the administration was driven by bigotry and prejudice, rather than legitimate national-security or other policy concerns. The administration contends, meanwhile, that normal procedures were followed and that the policy decisions that resulted were the product of thorough deliberations.

And this means that judges have to decide whether to take the administration’s explanation at face value without addressing whatever Trump has said — or to evaluate Trump’s comments as a crucial part of the story. This choice can make an enormous difference for whether a policy stands or falls.

Take Trump’s presidential order to temporarily restrict travel to the U.S. by people from a handful of countries, many of which are majority-Muslim. At first, lower courts struck down three successive versions of the order. In many of those rulings, judges relied on the president’s tweets and statements to conclude that the government’s national security rationale simply wasn’t convincing. But when the case made it to the Supreme Court, Chief Justice John Roberts took a very different tack. Roberts upheld the travel ban, and in his majority opinion, he acknowledged Trump’s comments about Muslims but ultimately concluded that Trump’s order was grounded in legitimate national-security concerns.

To some extent, this approach was expected. In cases involving immigration, foreign affairs and national security, courts commonly defer to the president’s authority when considering whether a particular action was valid. “What’s head-spinning about Trump is that there are a lot of cases where … there doesn’t seem to be a lot of room for doubt about his intentions,” said Richard Primus, a professor of constitutional law at the University of Michigan.

In the past, presidents might have had all kinds of ulterior motives for pursuing or supporting a particular policy, but they didn’t say them at news conferences or on TV. “Until now, the executive branch has been kind of a black box,” said Josh Blackman, a professor at South Texas College of Law. “Trump is giving courts all kinds of insights that they might not have had in the past.”

And it’s not necessarily clear what courts are supposed to do with those insights. In my conversation with Primus, he seemed skeptical that the Supreme Court would start probing Trump’s motives in future cases. “I think they will continue to insist on acting like they don’t know the president’s motivating attitudes,” he said. If the court were to deviate from its typical practice in response to Trump’s unusual behavior, it could create an awkward situation if the next president is more traditional — does the court revert to its previous practice or stick with the new approach? But staying the course has risks, Primus said — ignoring a president’s motivation could lead to abuses of power in the present and the future.

The travel ban ruling now hangs over cases currently unfolding in the lower courts over DACA (a program originally created by President Obama that protects young undocumented immigrants from deportation), the status of immigrants from Haiti and other countries, and the restrictions on transgender servicemembers. In each, Trump’s tweets or statements are being used as evidence of discriminatory intent by the administration. And the administration’s opponents are arguing that the government’s actions were illegal in at least one of two ways: They violated the procedures set forth for administrative agencies, including a requirement that decision-making not be “arbitrary” or “capricious,” or they violated the constitutional rights of the people who were affected.1

So far, lower court judges have seemed open to these arguments, but it’s still early in the process. In one lawsuit related to the status of Haitian immigrants who fled to the U.S. after a 2010 earthquake, a judge issued an injunction last fall preventing the Trump administration from terminating the immigrants’ legal status. In the ruling, the judge cited something Trump reportedly said in a meeting about a year ago suggesting that the U.S. might be better off prioritizing immigrants from Norway over migrants from “shithole countries” like Haiti, El Salvador and Nigeria. He said that comment, along with another instance in which Trump reportedly said that 15,000 recent immigrants from Haiti “all have AIDS,” raised “serious questions” about whether the administration’s decision “was influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution.”

But whether one of these cases will prompt the Supreme Court to be clearer about when — and how — a president’s statements, and what they might suggest about his motivations, are relevant for the courts remains a big question. Nearly all the legal experts I spoke with emphasized that there are good reasons for courts to refrain from frequently probing the executive branch’s motives — including the fact that they’re often ruling on highly technical questions where administration officials, not judges, are the experts. And questioning presidential motives on a more routine basis could lead judges into situations where they appear to be making political decisions. “The risk here is that the courts become too involved in political debates,” said Gillian Metzger, a law professor at Columbia University.

And so in the meantime, the judges puzzling through these issues in their courtrooms may find themselves stuck between a rock and a hard place, grappling with a question that Trump’s presidency has posed in many different ways: How should the legal system respond to a norm-shattering president? On the one hand, they’re in a position of significant power, with the ability to question what Trump is doing and why. But their responses to Trump could also change the fragile balance of power between the courts and the president in ways that are very difficult to predict.

Other cases

Pre-presidency Trump

  • Roger Stone, a Republican strategist and longtime adviser to Trump, was indicted last month by special counsel Robert Mueller’s team; Stone is accused of a variety of crimes related to his alleged attempt to cover up communications with WikiLeaks during the 2016 campaign. Stone pleaded not guilty to the charges, which include witness tampering, making false statements and obstructing an official proceeding.
  • A judge postponed the sentencing of former Trump campaign chairman Paul Manafort in a Virginia court, where he was convicted last year on eight financial and banking fraud charges, because of an ongoing conflict over whether he breached his plea agreement in a separate case by lying to Mueller. A federal judge in Washington, D.C., scheduled a closed hearing on the plea agreement today.
  • A lawsuit filed last year accusing Trump, his three eldest children and his company of using the Trump brand to entice vulnerable people into a fraudulent business deal was updated to include new allegations, including a claim that the Trumps profited from a marketing scheme aimed at teenagers.

The Trump administration

  • In a 5-4 vote, the Supreme Court lifted two injunctions that lower courts had placed on the Trump administration’s ban on most transgender servicemembers, likely allowing the policy to go into effect while challenges to the policy make their way through the courts.
  • The Supreme Court declined to take action on cases involving the Trump administration’s efforts to rescind the DACA program, which likely means that the policy will stay in place at least until next fall, when the court’s next term begins. These cases are continuing to move through the lower courts; last month, the 2nd U.S. Circuit Court of Appeals heard oral arguments in a DACA-related case.
  • After a federal judge in New York ruled against the Trump administration’s effort to add a citizenship question to the 2020 census without relying on a contested deposition from Commerce Secretary Wilbur Ross, the Supreme Court removed from its docket a case over whether the deposition could be introduced as evidence. However, the court could still hear a case this term that involves broader issues surrounding the addition of a citizenship question to the census. Lawyers for the government asked the court to decide the case before June, when the census forms are scheduled to go to print. Several cases involving the question are still unfolding in the lower courts, including a lawsuit in Maryland whose trial concluded last month.

Footnotes

  1. Cases challenging the addition of a question about citizenship to the 2020 census have also involved questions about whether key Trump administration officials were being truthful about their motivations, but Trump’s own motives aren’t at issue.

Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

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