Will Trump’s Tweets Backfire In Court?

Jack Goldsmith: “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.”