Trump’s use of Twitter could have implications for the presidency itself.
Her evidence? The president’s own tweets.
It was just the latest case in which Trump’s penchant for 140-character pronouncements has come back to haunt him in court.
The ability of the president to broadcast his thought process in real time could have far-reaching implications — not just on the Trump White House, but on the presidency itself.
Shoot-from-the-hip tweets that came from a reality television star campaigning for president have an entirely different effect when they come from the president of the United States.
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Already, judges have turned to his tweets to discern the motivation behind executive orders that have been challenged in court — something they’ve been reluctant to question in the past.
But presidential tweets could also force a rethinking of long-understood doctrines on presidential immunity and obstruction of justice, legal scholars say.
“The 140-character medium kind of complicates things because it’s new — but it doesn’t fundamentally change the analysis,” said Daniel Hemel, a law professor at the University of Chicago. “Bad cases make bad law, and cases where the president exceeds the bounds of his constitutional authority are going to lead to precedents that hem in a future commander in chief.”
It’s not that Twitter as a platform is forcing the issue. It’s the impulsive oversharing that it encourages – and that Trump relishes. In the past, presidential statements were often carefully written and vetted by staffers, who would carefully edit out legally problematic language. Even when the president spoke extemporaneously, he would often be prepared with talking points.
There’s an upside to that, especially for Trump’s supporters: His tweets are seen as authentic, and his ability to publish them with the tap of a smartphone means he can get around the media “filter” and take his message directly to the people.
The downside: Trump’s stream-of-consciousness tweeting creates a public record that can and will be used against him in a court of law.
In the transgender ban case, U.S. District Judge Colleen Kollar-Kotelly wrote that announcing an abrupt policy announcement on Twitter lacks “any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans.”
Two weeks earlier, U.S. District Judge Derrick Watson blocked the implementation of the latest travel ban order after a lawsuit claimed it illegally discriminated against Muslims. The Justice Department argued that the ban had nothing to do with religion, but the judge cited Trump’s tweets as evidence that he “has never renounced or repudiated his calls for a ban on Muslim immigration.”
One such tweet: “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to (the Supreme Court).”
Even Trump’s allies have said his tweets aren’t helping his legal case. Attorney George Conway — who was considered for a post as Trump’s solicitor general and who is married to White House Counselor Kellyanne Conway — said the travel ban tweets “seriously undermine” the president’s agenda by making it more difficult to get five votes on the Supreme Court to uphold his orders.
The Supreme Court has not yet decided either case on the merits, so it’s unclear how much legal weight Trump’s tweets will carry.
But the consequences could go beyond his executive orders. Doug McKechnie, a law professor at the United States Air Force Academy, argues that they could force courts to rethink long-held doctrines on presidential immunity.
Though not found in the constitution, courts have long held that the president can’t be sued for official actions. In a case concerning President Nixon’s firing of an Air Force whistleblower, the Supreme Court held that the president has absolute immunity when his actions he “acts within the ‘outer perimeter’ of his official responsibilities.”
That “outer perimeter” has been mostly self-policing. Presidents rarely involved themselves in issues unrelated to their official duties.
If the president’s tweets are no longer bound by technological and institutional constraints, they might also not deserve the legal benefit of the doubt, McKechnie argues in an article just published in the University of Miami Law Review.
But where do you draw that perimeter on Trump’s twitter feed, which combines policy pronouncements and political arguments with more personal statements?
Trump has used his Twitter account to announce the transgender ban and the appointment of a new FBI director, but also to settle personal scores, including MSNBC’s Mika Brzezinski and former California governor Arnold Schwarzenegger, who succeeded him on Celebrity Apprentice.
Trump has also been aggressive in taking people to court. During his campaign and through the transition, he sued or threatened to sue Univision for dropping his Miss USA pageant, threatened to sue women accusing him of sexual misconduct, the New York Times, Sen. Ted Cruz and the Republican National Committee.
As president, he hasn’t followed up on those threats. But even the threat of a lawsuit on Twitter could put courts in the position of having to re-examine presidential immunity, McKechnie said.
“If the president can sue — but not be sued — for malicious defamation, what kind of chilling effect does that have for democracy and free speech?” McKechnie said. “My argument is that this is even more chilling if the president is a litigious person.”
Last week, Trump responded to the indictments of former campaign aides with a series of tweets attacking one of the witnesses in the probe, and urging the Justice Department to instead investigate former campaign rival Hillary Clinton.
Witness tampering and vindictive prosecution could be construed as obstruction of justice. And, says University of Chicago law professor Daniel Hemel, co-author of a forthcoming University of California law review article on presidential obstruction of justice. “There’s no reason why obstruction of justice couldn’t happen in a tweet.”
But do Trump’s tweets really cross that line?
“I don’t think it rises to obstruction for a president to say, ‘Hey, I’ve heard these disturbing news reports, I think the DOJ should investigate this,'” Hemel said. “If he said, ‘Attorney General Sessions, I want Hillary to be behind bars, do what you can to put her there,’ — that starts to look like obstruction of justice.”
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Courts tend to give the executive branch wide deference in deciding how to enforce the law. But if Trump’s use of Twitter causes judges to examine the motives behind the president’s actions, that could begin to erode that “presumption of regularity.”
But he said Trump’s use of Twitter is so closely tied to his personality that it might not be a problem for future presidents.
“This might be the 140-character presidency. But I don’t think it’s the 140 character-ization of the presidency,” Hemel said. “This too shall pass.”
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