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WASHINGTON — White House and Justice Department lawyers quickly reached out to George Conway, the litigator-husband of White House senior counselor Kellyanne Conway, to endorse his sharp criticism of President Trump’s early morning tweetstorm about the handling of his travel ban, according to Conway’s latest tweets about the issue.
George Conway, a prominent New York attorney, criticized the president’s Monday tweetstorm deriding his own Justice Department. Conway called the tweets “sad” and damaging to the federal government’s case for its proposed travel ban.
“These tweets may make some [people] feel better, but they certainly won’t help OSG get 5 votes in SCOTUS, which is what actually matters. Sad,” Conway tweeted. OSG is the Office of the Solicitor General, which is defending several challenges to the president’s revised executive order banning travel from six Muslim-majority countries and suspending the U.S. refugee program entirely.
Within hours after Conway stunned Washington’s legal community by publicly upbraiding his wife’s employer, he said he had already heard from Trump administration lawyers privately backing up his position.
“Every sensible lawyer in WHCO [White House Counsel Office] and every political…appointee at DOJ [Department of Justice] wd agree with me (as some have already told me),” Conway wrote. “The pt cannot be stressed enough that tweets on legal matters…seriously undermine Admin agenda and POTUS—and those who support him, as I do, need to reinforce that pt and not be shy about it.”
Conway confirmed to Yahoo News the tweets were his but declined to elaborate on how he thinks Trump’s comments could hurt the White House’s case in court.
Conway was up for a top job in the Justice Department’s civil division but withdrew from consideration last week, citing concerns that it was the not the best decision for his family. Before his Monday tweets criticizing the president, Conway had not posted on Twitter for more than a year. He was also reportedly up for consideration for the solicitor general position.
The president tweeted early Monday morning several times, criticizing his own Justice Department for submitting a “watered down” and “politically correct” version of his original travel ban executive order, which had also barred Iraqis from entering the U.S., among other changes. “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.,” he wrote.
“People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” the commander in chief tweeted.
The president signed a revised travel ban in March after the Ninth Circuit Court of Appeals and other federal courts blocked his original ban, arguing that it was likely unconstitutional because its intent was to target Muslims.
Several federal judges cited the president and his staff’s own words saying they wanted to institute a “Muslim ban” as evidence that the executive order was intended to unconstitutionally target a specific religion. Derrick K. Watson, the federal judge in Hawaii who blocked the revised executive order, wrote that he found “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” That evidence includes former Trump adviser Rudy Giuliani saying the president asked for a “legal” version of the Muslim ban to sign, and the president’s comments on the Christian Broadcast Network the day he signed the executive order, when he said he would give Christian refugees preference over Muslim ones.
The Justice Department has argued that the courts should consider just the text of the executive order, not comments by the president or his staff about its intent.
Now, attorneys on both sides of the political spectrum say Trump’s words may again hurt him in court.
Neal Katyal, the former acting solicitor general under former President Barack Obama who now is representing the state of Hawaii in its challenge of the travel ban, tweeted that the president was acting as his “co-counsel” because his comments were so damaging to the government’s case.
Faiz Shakir, national political director at the American Civil Liberties Union, also encouraged the president to keep it up. “Keep tweeting, Mr. President. A lot of people are saying it’s fantastic and that we need more!! Tremendous,” Shakir told Yahoo News.
Trump’s tweets could potentially hurt the government’s case in several ways. For one, the Trump administration has forcefully pushed back on referring to the executive order as a “travel ban” — a phrase Trump repeated several times in his Monday Twitter flurry.
“This is not a travel ban,” Homeland Security Secretary John Kelly said after the order was signed. “This is a temporary pause that allows us to better review the existing refugee and visa vetting system.”
The administration probably wanted to shy away from the word “ban” because it harkened back to candidate Trump’s promise of a “Muslim ban” — a policy that many federal judges would rule unconstitutional.
Secondly, in calling his revised order “watered down” and “politically correct,” the president suggests that the new executive order does not make a clean break from the intent of the first, which is the argument that judges cited while rejecting the revised version. Criticizing the executive order the Justice Department is defending could also lead Supreme Court justices to argue the case is not “ripe”–a legal term that means it’s premature to consider an argument. Katyal could argue “this isn’t a ripe case because the president can’t make up his mind whether he wants the original version or the new version of the order,” said Douglas Kmiec, a law professor at Pepperdine University who worked in the Department of Justice under President Reagan and President George H.W. Bush. That would allow the Supreme Court to dodge a politically charged case, letting the lower court’s rulings blocking the order stand.
Trump also attacks the courts as “political” in one of the tweets, potentially alienating the justices who will be examining his case. (“In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe,” he wrote. “The courts are slow and political!”)
Perhaps most importantly, however, is the fact that the Trump administration has not unveiled the new “extreme vetting” procedures the executive order was nominally crafted to create. The executive order asked for a temporary travel ban of 90 days on six countries (and of 120 days for refugees from all countries) while the government instituted new extreme vetting procedures for future visitors — procedures that the Trump administration has yet to produce. Judges may take the absence of extreme vetting measures as evidence that the travel ban was not actually urgently needed so the administration could immediately improve their procedures, as the government claimed. Trump’s claim that “extreme vetting” is happening despite the court’s slowness could also lead to the argument that his executive order was not necessary to accomplish its stated goal.
Still, the Justice Department has the powerful argument that the president has wide latitude in deciding who can enter the country. Government lawyers may also point to Trump’s recent speech in Saudi Arabia distinguishing radical Islam from Islam as a whole as proof that religious animus is no longer driving his national security policy.
According to the New York Times, the president may have been reacting to a segment on MSNBC’s “Morning Joe” when he started his Monday tweetstorm. A few minutes before Trump’s tweets, the show’s hosts played clips of Trump administration officials emphatically saying the policy was not a travel ban, contrasting it with the president’s Saturday evening tweet after the London terror attacks saying America needed a “travel ban” to be safe.
Additional contributions by Michael Isikoff.
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