Leading up to inauguration in January, I had a dual-faceted concern about the interaction between President-elect Trump and his attorneys. First, as I noted in National Review, I worried that the Office of Legal Counsel and White House Counsel would “continue the trend of rubber-stamping implausible assertions of power.” Second, I harbored a far greater fear that the lawyers would tell President Trump “no,” and he would do it anyway. And I’m not talking about the sort of forum shopping President Obama engaged in when he chose Harold Koh’s approval to bomb Libya over OLC’s denial. My concern was that all lawyers in the administration would tell him his preferred action was illegal, but he would pursue that path anyway.
Generally, the public learns about internal dissent when members of the executive branch noisily resign, or in the case of Sally Yates, wait to be fired. The Trump administration, however, offers a novel means to discern the extent to which the President complies with legal advice: Twitter. While most Presidents avoid speaking about internal policy decisions off-the-cuff, Donald Trump’s “trigger fingers turn to twitter fingers.” Time after time, Trump has tweeted boorish and inappropriate messages after courts halted his executive orders. And time after time, Trump’s bluster was nothing more than bluster, as his Justice Department took the same prudent course that previous Justice Departments would have.
Following the nationwide injunction halting the initial travel ban, Trump tweeted that Judge Robart was a “so-called judge,” and added “[i]f something happens blame him and court system.” These are the rants of a rogue president poised to disregard a court’s order. Did the executive branch ignore the order? No. The Justice Department timely appealed Washington v. Trump in the same fashion as any other Justice Department would have. Trump listened to his lawyers. (I’ll put aside here the technical question of whether the order was best viewed as a preliminary injunction or a temporary restraining order).
After the 9th Circuit denied a stay, Trump infamously tweeted in all caps “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” This is the ultimatum of a President about to appeal a case to the Supreme Court. Did the Acting Solicitor General rush a petition for an emergency stay to Circuit Justice Kennedy? No. The executive branch regrouped, and announced that it would issue a new executive order. The Justice Department asked the 9th Circuit to “hold its consideration of the case until a new Order is issued.” Here, the ultimatum was a bluff. Trump listened to his lawyers.
Three weeks later, on March 6, President Trump revoked the first executive order. Though Trump had earlier insisted that the element of surprise was necessary to keep out potential terrorists, the new travel ban would go into effect ten days later. Here, the President’s preferred course was palpably altered by attorneys: the executive branch did not defy the “so-called judge,” but instead tweaked the order in response to the 9th Circuit’s decision, and delayed its effective date to avoid the chaos that resulted from the first order. Here too, Trump listened to his lawyers.
Let’s consider another enjoined policy. President Trump has referred to his sanctuary city executive order as a “weapon,” and said he would defund California because it “is out of control.” On the basis of these remarks, Judge Orrick halted the executive order, notwithstanding the fact that the “Government’s lawyers recognize that the Order cannot do more constitutionally than enforce existing law.” Despite the court’s fear that the executive branch would (implausibly) withhold all sorts of funding from San Francisco—including “Medicare, Medicaid, transportation, child welfare services, immunization and vaccination programs, and emergency preparedness”—the Justice Department’s actual actions were entirely benign. A series of letters were sent to a dozen sanctuary jurisdictions, stating that their failure to certify compliance with Section 1373—a condition the states acceded to—could result in the loss of a small quantity of law enforcement grants. Rather than using the executive order as a “weapon,” the Justice Department acted well within their authority. There was not an effort to bankrupt California, but instead withhold a modest amount of money based on clearly-stated rules the states agreed to. Trump, again, listened to his lawyers.
Recently, the legal blogosphere was abuzz over President Trump’s imminent religious liberty executive order. HRC was ready to file suit due to feared LGBT discrimination. The ACLU was poised to challenge a decision not to enforce the Johnson Amendment against churches. The resistance expected the worst. Instead, we got a “nothing burger.” After eight years of the President using his pen and phone to the maximum extent conceivable, Trump’s order was, as the ACLU put it, a “faux sop to religious conservatives.” Why was the final order so dramatically changed from the ambitious version leaked to The Nation earlier this year? Marty Lederman offered one theory: “cooler heads—and good lawyers—in the Administration appear to have prevailed.” Once again, Trump listened to his attorneys.
This pattern—where the President blows smoke up Twitter but his lawyers nudge him to act normally—has repeated itself over and over again. Why is this pattern relevant? Because all of the court decisions I mentioned above were premised on the President’s threatened, uninformed bluster, rather than the executive branch’s actual, informed actions. I admit it is somewhat disjointing to separate the President from the executive branch, but for better or (mostly) worse, such is the first four months of the Trump era. The bark is much worse than the bite. Indeed, the bark has no bite. It is all hot air. Rather than treating Trump’s tweets as existential threats to the rule of law, take them for what they are: uninformed rantings with zero legal effect. I’m sure lawyers within the administration would prefer the President stayed quiet, but that is not who he is. And fortunately, for the rule of law, what happens on Twitter stays on Twitter. Recognizing the fecklessness of Trump’s barbs should give courts pause before elevating his social media over actual policy statements.
There is an additional, structural problem with how judges have reviewed these cases. Article II, Section 2, affords the President the power to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” This provision ensures that the President can seek counsel from Senate-confirmed members of his administration about important legal questions, and in particular, lawyers.
A final executive order, signed by the President, reflects a document that has (hopefully) been fully vetted by agency lawyers (the lawyers the judges seem to trust). In contrast, tweets were not vetted by agency lawyers and mere uninformed rantings of the President. When courts discount reasoned decisions from the executive branch in the place of social media, they intrude upon the President’s constitutional prerogative to seek the advice of his cabinet, and instead locks the government in to uninformed tweets.
The examples I gave above illustrate that the President’s tweets have very short shelf lives, and seldom translate to actual policy. Instead, much to my surprise, the President actually listens to his lawyers. In case after case, judges have taken pains to separate the contemptible President Trump from the commendable Justice Department lawyers, noting that the President’s statements differ from the formal presentations made in court. They shouldn’t. Here we have a President who won’t shut up on Twitter, but when push comes to shove, he listens to his lawyers and complies with the rule of law. Courts that bind Trump to his earlier tweets, without considering that lawyers can persuade him otherwise, improperly intrude on the separation of powers, and the executive’s deliberative privilege.