Is Trump Trying to Lose?

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/is_trump_trying_to_sabotage_his_administration_s_defense_of_the_travel_ban.html

June 6 2017 12:54 PM
Is Trump Trying to Lose?

Three ways Monday’s bizarre tweetstorm sabotages his administration’s defense of the travel ban.
By Dahlia Lithwick and Mark Joseph Stern

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While there are several layers to Trump’s self-sabotage, the one closest to the surface is the most significant. As the 4th Circuit explained in its recent decision, courts must generally defer to the federal government’s determinations regarding immigration and national security. There is, however, a key exception to this rule: When a plaintiff makes “an affirmative showing of bad faith” that is “plausibly alleged with sufficient particularity,” courts can “look behind” the action to search for constitutional infirmities.
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For months, Trump’s lawyers have insisted there is no such evidence of bad faith with regard to the travel ban. On Monday, Trump burned that argument to the ground.

“People, the lawyers and the courts can call it whatever they want,” Trump tweeted, “but I am calling it what we need and what it is, a TRAVEL BAN!” Later, he reiterated his belief that “we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” At a bare minimum, these statements imply that “the lawyers” are not telling the truth about the order, propping it up in “politically correct” pretext to shift the focus away from “certain DANGEROUS countries” (that happen to be Muslim-majority). The tweets run counter to the DOJ’s arguments and hint at a more malign motive. In short, they illustrate precisely the kind of “bad faith” necessary to look beyond the order’s text to determine its true intent.

That’s bad news for Trump, because once courts are able to examine his statements for unlawful animus, they’ll find loads of it. Now, it is true that Trump made his most vicious anti-Muslim statements before entering the Oval Office and that his second ban omits unambiguous references to religion. And under relevant Establishment Clause precedent, prior indications of illegitimate purpose do not “forever taint” a state actor. The taint of unconstitutionality can dissipate, and Trump’s defenders assert that the president’s conciliatory statements about Islam may have done the trick.

Yet Monday’s tweets might as well have been designed to perpetuate the stain of animus that Trump’s lawyers are working so very hard to bleach out. Trump reverted to his instincts, railing against the “politically correct” second ban, grousing that the Justice Department “should have stayed with the original Travel Ban,” and claiming that his administration might “seek a much tougher version!” An extremely generous reading of these tweets could still not overlook the implication that the second order is, to Trump’s mind, simply a less effectual version of the initial ban, and that neither of the orders accomplished his true goal (hence the need for a “much tougher version.”) And what is that goal? Before becoming president, Trump stated it outright: “a total and complete shutdown of Muslims entering the United States.” His tweets on Monday suggest that this unconstitutional objective still lies behind his executive orders.

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So, what in the world is Trump doing? Is he crazy like a fox, gaming this litigation in some fashion that we don’t yet understand? Is he so irked with his lawyers that he’s simply trying to foil them in court?

We think the explanation is simpler. Trump isn’t gaming anything. He’s simply acting from his usual place of id, pride, and cluelessness. That doesn’t mean he’s destined to lose: We’d say he still has roughly a 50-50 chance of winning at the Supreme Court. But his tweets are making it increasingly difficult for his lawyers—and his allies on the bench—to give him cover. Trump isn’t crazy like a fox, and he isn’t trying to lose. He just doesn’t understand how to win.