President Donald Trump’s injudicious words are coming back to haunt him in court.
From a high-profile Army court-martial to his travel ban executive order, Trump’s often-heated rhetoric has caused a series of self-inflicted wounds. The paradoxical result of his tough talk could undermine the legal outcomes he’s hoping for, and the pressing question is when it might happen again.
“I think President Trump’s words and actions during the campaign made him a bull in a china shop,” defense attorney and Yale Law School research scholar and lecturer Eugene Fidell said in an interview Tuesday, “and now a number of federal agencies will have to be cleaning up after him.”
Fidell is among those already exploiting Trump’s rhetoric, as he defends Army Sgt. Bowe Bergdahl against charges of desertion and misbehavior before the enemy. He is asking that the charges be dismissed or potential punishments softened because of Trump’s repeated denunciations of Bergdahl as a “no-good traitor.”
“In the old days, you know what would have happened to him, right? Quickly,” Trump told a campaign audience in Greensboro, North Carolina, on June 14, 2016.
Then, Trump pantomimed firing a rifle. He pulled the same rifle move several other times while discussing Bergdahl during the campaign. In Pensacola, Florida, on Jan. 20, 2016, Trump declared that “Frankly, I would take that son of a bitch, I’d fly him back, I’d drop him right over the top.”
If I win I might just have him floating in the middle of that place and drop him, boom. Let ’em have him. Let ’em have him. I mean that’s cheaper than a bullet. Donald Trump, Oct. 16, 2015, on Sgt. Bowe Bergdahl
Coming from on high, such words can matter.
In 1970, then-President Richard Nixon prompted calls for a mistrial when he prematurely declared that cult leader Charles Manson was “guilty, directly or indirectly, of eight murders without reason.” Nixon quickly walked back his comments. Much more recently, a former Marine Corps commandant complicated myriad sexual assault cases with blunt talk that seemed to prejudge defendants.
The Trump twist is about how much weight should be placed on speech uttered before a candidate takes office.
On Monday, in an Army courtroom at Fort Bragg in North Carolina, portions of a 28-minute tape of Trump’s campaign comments prepared by Bergdahl’s defense team were played over the government’s objections for the judge, Army Col. Jeffery Nance. Nance pronounced Trump’s rhetoric “disturbing,” according to news accounts confirmed by Fidell.
“We hope for meaningful relief,” Fidell said. “What the president has done clearly amounts to unlawful command influence.”
If Nance concludes that Trump’s words amount to unlawful command influence, or the appearance of it, he could take a range of actions from outright dismissal of the charges to ruling out the possibility of incarceration to providing Bergdahl’s defense team with additional power to eliminate potential jurors. The trial is scheduled to start April 18.
On Tuesday, further supporting the argument that Trump’s campaign words can color presidential actions, Fidell filed with the military court the newest decision by a federal judge concerning the president’s Jan. 27 travel ban executive order. Like Bergdahl’s claims of unlawful command influence, the new executive-order decision turned on Trump’s own words.
In the latest in a series of legal defeats for the White House, Northern Virginia-based U.S. District Judge Leonie Brinkema on Monday blocked the travel ban, which covered citizens of seven majority-Muslim nations. Tellingly, Brinkema devoted three or so pages of her 22-page opinion to recounting Trump’s various statements about Muslims.
Though Brinkema’s injunction was limited to Virginia residents affected by the travel ban, her conclusions mirrored those of other judges who have considered Trump’s controversial executive order. Sounding skeptical, Brinkema contrasted Trump’s “asserted rationale” for the temporary travel ban with the “president’s public comments.”
Brinkema, for instance, cited a Dec. 7, 2015, statement in which Trump called for a “total and complete shutdown of Muslims entering the United States” for the time being.
“Although (Justice Department attorneys) dispute the relevance of these statements,” Brinkema noted, “they have not contested their accuracy.”
Brinkema, moreover, dismissed Justice Department arguments that words uttered while campaigning don’t taint the actions taken by an elected executive.
“Just as the Supreme Court has held that ‘the world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office,” Brinkema stated.
The Supreme Court, for instance, noted in a 2005 decision against the posting of the Ten Commandments in two Kentucky courthouses that “reasonable observers have reasonable memories” concerning the context in which public policy decisions are made. For similar reasons, the high court ruled in 2000 against a Texas school district’s football game prayers after examining a year’s worth of events that led up to the prayer policy.
A three-judge panel of the 9th U.S. Circuit Court of Appeals likewise noted in a Feb. 9 decision thwarting Trump that “the states have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the executive order was intended to be that ban.”
The 9th Circuit will soon decide whether all of its active judges will reconsider the decision by the three-judge panel, with legal briefs from both sides due Thursday morning.
Other attorneys, meanwhile, are mining Trump’s many words, looking for some legal treasure of their own.