Representing Donald Trump is a lawyer’s worst nightmare. And he just gave his own administration’s lawyers yet another reason to cringe.
The primary reason why Trump’s Muslim ban has taken some occasional beatings in federal court is pretty simple: The president can’t stop making public statements that undermine his own legal arguments. As a candidate, he bragged about his intention to ban Muslims from entering the country. Then he bragged about the pretext he would use to make this ban appear legal. Then, when the ban was in hot water, legally speaking, and his lawyers were trying to convince courts that it wasn’t handed down because Trump is harbors a bigoted animus toward Muslims, Trump shared several anti-Muslim videos on Twitter.
And so it came to pass that the subject of Trump’s Muslim ban came up during a joint press conference with Nigerian Prime Minster Muhammadu Buhari on Monday. If Trump were smart, he would have kept his mouth shut.
— ABC News (@ABC) April 30, 2018
Yes, the President of the United States is like a cartoon supervillain who, having captured the hero, decides to reveal the details of his evil plan.
To understand why Trump’s statement at the joint press conference was so ill-advised, consider an exchange between Chief Justice John Roberts and attorney Neal Katyal, who argued against the Muslim ban during last week’s arguments in Trump v. Hawaii.
On its face, Trump’s proclamation announcing the Muslim ban is not an explicitly anti-Muslim document. It restricts foreign nationals from several majority Muslim nations from entering the country, but it also purports to do so for national security reasons — not for reasons rooted in religious bigotry. The primary evidence that the proclamation is, in fact, an attack on Muslims is that Trump has repeatedly promised to implement a Muslim ban by banning people from certain parts of the world.
This led Chief Justice Roberts to wonder whether Trump could save this proclamation by “disavowing all those statements” where he expressed anti-Muslim animus. Katyal struggled to answer Roberts’ question completely as he was hit with additional questions from Roberts and Justice Samuel Alito, but the lawyer’s answer indicated that Trump would significantly bolster his case if he were to disavow his previous anti-Muslim statements.
And yet, when Trump had an opportunity to do just that at Monday’s press conference, he did the opposite.
After a reporter asked Trump about this exchange between Roberts and Katyal, Trump said that he would not back away from his past statements because “there’s no reason to apologize.”
“Our immigration laws in this country are a total disaster,” Trump claimed. “They’re laughed at all over the world. They’re laughed at for their stupidity. So I think that if I apologize [for my past statements] it wouldn’t make ten cents worth of difference” to the Supreme Court. “There’s nothing to apologize for.”
Ironically, at the conclusion of the oral arguments in the Hawaii case, Solicitor General Noel Francisco tried to claim that Trump is actually pro-Muslim. “He has made crystal-clear that Muslims in this country are great Americans,” Francisco said of Trump. “And there are many, many Muslim countries who love this country, and [Trump] has praised Islam as one of the great countries [sic] of the world.”
Trump’s statement that he has “nothing to apologize for” regarding his past anti-Muslim statements directly contradicts Francisco’s claim.
Will this matter? Probably not. The Court’s four most conservative members appear all-but-certain to vote with Trump after last week’s oral argument, and Justice Anthony Kennedy appeared to lean in that direction.
Nevertheless, Trump has served up a perfect opportunity to bolster his case. Instead, he directly contradicted his own lawyer on a central matter in this case. That’s never a good plan for a litigant who hopes to prevail in court.