(Quote in 8th paragraph may be objectionable to some readers.)
Ethics rules prohibit lawyers from presenting arguments in briefs and in court that they do not believe to be true. So how will President Trump’s defiant tweetstorm on Monday morning, disdaining the “watered down, politically correct” travel ban he signed after his original executive order was deemed unconstitutional, constrain Acting Solicitor General Jeffrey Wall and his DOJ team as they attempt to reinstate the travel ban at the U.S. Supreme Court?
Ethics experts I consulted on Tuesday offered a wide range of opinions on that question, though they agreed the Justice Department will have to be careful not to take positions contradicted by Trump’s tweets. At best, the experts said, the solicitor general’s office can no longer argue that the president himself wanted the executive order only to pause immigration from six Muslim-majority countries temporarily so the U.S. can study its vetting procedures.
At worst, the Justice Department could be subject to an ethics inquiry about whether its lawyers knowingly misrepresented facts in their Supreme Court filings. I left a message at the SG’s office, asking about ethical concerns in light of the president’s tweets, but didn’t get a response.
The Justice Department’s June 1 petition for Supreme Court review of the en banc opinion of the U.S. Court of Appeals for the 4th Circuit, holding the travel ban to violate the First Amendment, emphasizes the Trump administration’s core argument that the 4th Circuit erred in considering the president’s motives. According to the petition, Congress and the Supreme Court have agreed that the executive branch has extremely broad discretion to set immigration policies to assure national security.
The petition repeatedly refers to the “temporary” suspension of immigration from the affected countries, including in two of the three questions the filing presents. The words “travel ban” do not appear in the filing, and the only time the Justice Department uses the phrase “Muslim ban” is to say the executive order was not one.
The president’s tweets Monday – which affirmed his belief that “what we need” is “a TRAVEL BAN” – do not ethically constrain the Justice Department from continuing to argue for executive branch discretion to set immigration policy. But they do mean the solicitor general’s office can’t argue the president wanted only a temporary suspension of immigration to study vetting procedures. “You cannot say the president intends this to be a temporary ban if what he says implies that it will apply ad infinitum,” said Mark Foster of Zuckerman Spaeder.
Foster said the Justice Department can still make “artful” arguments that the Supreme Court should focus on the executive branch’s authority to do what the order actually sets out to accomplish without attempting to justify the president’s tweets. Thomas Morgan, an ethics professor at George Washington, also said in an email that the Justice Department’s ethical responsibility “is to argue the authority of any president to do what this one did, not to get bogged down in the content of the current president's Twitter posts.”
Both Foster and Morgan said, however, that Trump’s tweets will make those arguments more challenging for Justice lawyers. “Can they say it’s only a temporary ban if the president says that’s bullshit?” Foster said. “I think they’re in a tough spot. He’s put them in a tough spot.”
Or worse, according to former George W. Bush ethics counsel Richard Painter, a University of Minnesota law professor and ardent Trump critic. Painter told me that if the acting SG and his colleagues knew or should have known the temporary immigration suspension was a pretext for President Trump to ban immigration from the affected countries, they may have committed ethical violations.
“There’s a prima facie case that their briefing was factually inaccurate,” Painter said, pointing to the petition’s emphasis on the temporary suspension of immigration from the affected countries. The president’s tweets, Painter said, make it clear that Trump wants a longer-lasting ban. So the key question, according to him, is whether Justice Department lawyers knew when they submitted the petition for Supreme Court review that the temporary suspension could be a pretext for more sweeping action.
“There’s significant evidence these lawyers were not honest,” Painter said. “The Supreme Court should make an inquiry.” He conceded that he doesn’t know if the justices have ever conducted such an ethics investigation but said that at the very least the court ought to ask the Justice Department what it knew about the president’s intentions at the time of its filing and whether DOJ presented the facts accurately.
In a follow-up interview, Painter could not point to specific evidence of dishonesty but said that in his experience, Justice Department lawyers assure themselves of the views of the White House before representing those views at the Supreme Court. He said that DOJ lawyers could not be faulted if President Trump’s tweets Monday represent a new White House position but said the president’s outburst suggests his views are long held.
Painter drew an analogy to a 2016 rebuke to the Obama Justice Department by U.S. District Judge Andrew Hanen of Brownsville, Texas who sanctioned DOJ lawyers for allegedly misrepresenting the impact of its policy to defer deportation of certain undocumented immigrants. “All lawyers are expected to describe facts accurately to the court but I believe this obligation is higher when a Justice Department lawyer is explaining what the administration is doing,” Painter said.
Supreme Court litigator Andrew Pincus of Mayer Brown said Painter's theory is "entirely speculative." Pincus, who was a lawyer in the Clinton administration and has represented amici in challenges to both Trump travel bans, said the Justice Department lawyers who filed the Trump administration's petition for Supreme Court review not only have impeccable records of public service but "almost certainly" did not interact with Trump himself.
"These lawyers...had no reason to suspect, much less to know, any reason that the second order, signed by the president, should not be taken at face value," Pincus said in a response to Painter's comments. "Given the history of last five months, it seems highly likely that the president’s tweets came as a surprise to these lawyers, along with the rest of the country."