In what may be a first at the U.S. Supreme Court, President Donald Trump’s Twitter account was identified Monday as an “authority” along with the cases, law review articles and news citations that lawyers typically use to bolster their arguments.
The cited authority—”Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017), https://twitter.com/realdonaldtrump—came from the challengers to the president’s second executive order restricting travel from certain Muslim-majority countries.
Those challengers, represented by Hogan Lovells partner Neal Katyal, in the case Trump v. Hawaii, are urging the high court to reject a Trump administration request that would void a trial judge’s order blocking the travel ban from taking effect.
In the response to the government’s stay request, Katyal wrote: “Throughout these judicial proceedings, the president has continued to make generalized, often inflammatory, statements about the Muslim faith and its adherents.”
Hawaii’s brief argued that the Trump administration’s executive order is religious discrimination and that it exceeds the president’s statutory authority.
The president’s recent tweets—specifically discussing what he declared to be a “travel ban” and questioning the Justice Department’s lawyering in the case—have been viewed by many legal scholars and others as undermining the government’s legal arguments that the executive order is not any ban.
As The National Law Journal reported recently: “Twitter itself—but not a tweet—has only been cited once in a Supreme Court case. In Dietz v. Bouldin, a 2016 case on recalling jurors, Justice Sonia Sotomayor wrote for the majority, “Immediately after discharge, a juror could text something about the case to a spouse, research an aspect of the evidence on Google, or read reactions to a verdict on Twitter.”
Katyal first listed the president’s campaign statements and statements shortly after his inauguration as evidence that religious discrimination triggered the first executive order. He then zeroed in on the president’s recent tweets to show the same intent is behind the second executive order.
“On June 5, 2017, days after the government filed its stay application in this court, President Trump echoed these sentiments in a series of Twitter posts championing the ‘original Travel Ban’,” Katyal wrote. “He decried how the “Justice Dep[artment]” had submitted a ‘watered down, politically correct version * * * to S.C.’ He urged the Justice Department to seek ‘an expedited hearing of the watered down Travel ban before the Supreme Court,’ and to ‘seek [a] much tougher version.’ Finally, he claimed that ‘[t]he courts are slow and political,” but that his Administration was already ‘EXTREME VETTING people coming into the U.S.’”
A response also will be filed Monday to the government’s request that the justices lift an injunction issued by a Virginia federal judge blocking the executive order. That ruling was upheld by the U.S. Court of Appeals for the Fourth Circuit in May. The government also is seeking full review by the high court of the Fourth Circuit’s decision.
There is no timetable yet for when the justices will act on the government’s two stay requests and its petition for review.
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