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I’m starting to believe that either Donald Trump wants courts to strike down the Immigration Executive order, or that his White House Counsel is incompetent or ineffectual.
The Immigration EO has a surprisingly strong basis in law but was issued in haste, without proper interagency coordination, without proper notice, without adequate consideration of its implications, and with a media strategy, if it was that, that suggested that the EO was motivated by discrimination against Muslims. These factors combined with the subject matter and scope of the EO to alarm many people and to invite a fierce initial legal reaction from civil society groups, states, and judges across the country.
. . . Here is what I meant. The clearly foreseeable consequence of the roll-out combined with Trump’s tweets is to weaken the case for the legality of the EO in court. Why might Trump want to do that? Assuming that he is acting with knowledge and purpose (an assumption I question below), the only reason I can think of is that Trump is setting the scene to blame judges after an attack that has any conceivable connection to immigration. If Trump loses in court he credibly will say to the American people that he tried and failed to create tighter immigration controls. This will deflect blame for the attack. And it will also help Trump to enhance his power after the attack. After a bad terrorist attack at home, politicians are always under intense pressure to loosen legal constraints. (This was even true for near-misses, such as the failed Underwear bomber, which caused the Obama administration to loosen constraints on its counterterrorism policies in many ways.) Courts feel these pressures, and those pressures will be significantly heightened, and any countervailing tendency to guard against executive overreaction diminished, if courts are widely seen to be responsible for an actual terrorist attack. More broadly, the usual security panic after a bad attack will be enhanced quite a lot—in courts and in Congress—if before the attack legal and judicial constraints are seen to block safety. If Trump assumes that there will be a bad terrorist attack on his watch, blaming judges now will deflect blame and enhance his power more than usual after the next attack.
Many people responded to my tweet last night by saying that I was giving Trump too much credit. He is not that clever, they said. His tweets are an angry impulsive reaction, not part of a plan. Perhaps these criticisms are right; I don’t know. But if they are right, then the White House has a different problem (among others): An ineffectual or incompetent White House Counsel.
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.