Trump’s comments likely to cause heartburn for US lawyers

Associated Press

WASHINGTON

President Donald Trump lobs verbal bombshells on Twitter and fiercely criticizes federal judges overseeing his court cases. He openly discusses pending legal matters on which lawyers usually advise their clients to stay mum.

That freewheeling style, uncharacteristic for an American president, is sure to complicate efforts of Justice Department attorneys tasked with defending his executive actions in court. Federal lawyers, invariably inclined to speak through technical legal pleadings instead of on social media, are likely to be asked time and again to account for public statements from the president, including comments that seem to contradict or harm their arguments.

“This is what’s so surprising about Trump’s statements and his use of Twitter: He says all kinds of things that undermine the claims that the government is making in litigation,” said Eric Posner, a University of Chicago law professor. People challenging the government will bring tweets and other statements to the attention of the courts, Posner said, “and courts will pay attention to them.”

That showed up prominently in the legal fight over Trump’s ban on refugees and immigration from seven Muslim-majority nations, which federal courts have put on hold.

Even as Justice Department attorneys worked to convince courts that the policy was not motivated by religious prejudice, Trump himself was quoted in a news interview as saying he wanted to prioritize refugee admissions for Christians. “We are going to help them,” Trump told the Christian Broadcasting Network. “They’ve been horribly treated.”

Those comments were said to have helped persuade acting Attorney General Sally Yates – fired by Trump last week after she declined to defend his executive order – that the policy was meant to disadvantage Muslims. Lawyers for Washington state and Minnesota cited Trump’s public statements about Christian refugees in court filings and noted his campaign pledge to block Muslims from entering the U.S.

And in the opinion Thursday that refused to reinstate the travel ban, a panel of judges from the 9th U.S. Circuit Court of Appeals agreed that remarks made outside the courtroom were fair game for them to consider.

“If the president says ‘x,’ it’s hard for his own lawyer to credibly walk that back and say ‘not x,”’ said Andrew Schilling, the former civil division chief of the United States Attorney’s office in Manhattan. Just as a criminal defense attorney would advise a client to remain silent for fear his statements could be used against him, “that’s no less true when your client is the president.”

In just the past week, Trump referred to the jurist who suspended his temporary travel ban as a “so-called judge” and later wrote “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

He was more restrained Friday morning, saying he had “no doubt” he would eventually win in court on the ban. Later in the day, Trump told reporters he was considering signing a “brand new order.”

What remains unclear in light of Trump’s public statements, said law professor Posner, is whether the Trump administration will continue to enjoy the same deference that courts generally afford to executive branch decision-making.