Jack Goldsmith on Lawfare speculates that the Immigration Executive Order, which he considers to be poorly constructed and rolled out, was done with intention:
What might lead Trump to criticize Robart and judges for weakening American security? It is possible that he thinks his tweets will pressure the judges to cave and act in his favor. Judges don’t like to be responsible for national security debacles (which explains the deference they often give the political branches in this context), and thus they might worry about Trump’s predictions of a causal nexus between their rulings and a future terrorist attack.
The much more likely result of his tweets, however, is just the opposite. The Executive branch often successfully argues—quietly, in briefs and at oral argument, with citations to precedent—for its superior competence to judges in national security, and for the potentially dangerous consequences that might flow from too much judicial review in that context. But when arguments for deference to the President are made via threatening public tweets before an actual attack, they will certainly backfire. The tweets will make it very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with the significant deference to the President’s broad delegated powers from Congress and to the President’s broad discretion in foreign relations. Judges in the short term will be influenced by the reaction to the EO Immigration order, and by doubts about executive process, integrity, truthfulness, and motivation that the manner of its issuance implies. They will also worry a lot about being perceived to cave to executive pressure. The pressure from Trump, and related events, thus make it more likely—much more likely, in my view—that the Ninth Circuit and, if it comes to it, the Supreme Court will invalidate the EO in some fashion.
If we stipulate this to be true, then there’s a few things to worry about:
- Currently, vetting from the Obama Administration, which was considered to be effective, is in use – I hope. The question is whether Trump or someone on his team meddles with it. I would expect this to be a subtle approach, but the personnel in Homeland Security should be aware of it.
- A stronger version of #1 would be a subtle invitation of an attack by a hostile party. There’s little hope in expecting such a party to be suspicious of such an invitation, because the larger picture is of an America that is falling apart in its most important dimension – the freedoms and guarantees it offers citizens and immigrants.
Trump will run a risk, though, that a successful attack will not be pinned on the judiciary – but on the Administration. A secondary risk is the antagonization of the GOP, which does hold the weapon of impeachment. A tertiary risk, which may be non-existent, is the antagonization of the judiciary. Since it’s supposed to be indifferent to political circumstance, this shouldn’t be a major risk, or even a minor risk – but judges and justices are human, and if they perceive Trump as actually betraying the United States to build political capital, he may be made to pay for it regardless.
On the other hand, and way near zero on the probability scale, is an opposite interpretation – he wants the EO to fail for some other reason, but wants his political base to think he gave it the old college try. This would be a lot more reassuring, but is unverifiable in the current climate.
According to Goldsmith, there is one person who might have more evidence to offer: White House Counsel Donald McGahn.
One person who must bear responsibility for the awful rollout of the EO is White House Counsel Donald McGahn. The White House Counsel is charged with (among other things) ensuring proper inter-agency coordination on important legal policies and with protecting the President from legal fallout. McGahn should have anticipated and corrected in advance the many foreseeable problems with the manner in which the EO was rolled out. And he should have advised the President after his first anti-Robart tweet, and after the other more aggressive ones, that the tweets were hurting the President’s legal cause.
If McGahn did not do these things, he is incompetent, and perhaps we can attribute impulsive incompetence to the President. But if McGahn did do these things—if he tried to put the brakes on the EO, and if he warned his client about the adverse impact of his tweets—then he has shockingly little influence with the President and within the White House (i.e. he is ineffectual). And if McGahn is ineffectual as opposed to just incompetent—if he did, in other words, warn the President about the impact of his tweets and was ignored—then that lends credence to the suspicion that Trump knows the consequences of his actions and wants to lose in court, with the most plausible explanation being that he is planning for after the next attack.
It would be interesting to hear from Counsel McGahn on the matter.
