JUST PAST MIDNIGHT on Wednesday morning, the man who gave us the word “bigly” added yet another term to the American lexicon: “covfefe.” The president’s since-deleted late-night tweet, which read, cryptically, “Despite the constant negative press covfefe,” launched a thousand Twitter takes. Some of the jokes were great. Some were so very, very bad. (We’re looking at you, Ted Cruz.)
The covfefenomenon also provided the latest—and the most benign—example of why the President’s prolific tweets might just warrant a legal look before being broadcast to his 31 million followers, a plan the Trump administration has at least considered, according to a recent Wall Street Journalreport.
Dan Scavino, the White House’s director of social media, has refuted reports about lawyers filtering President Trump’s tweets. But still we wondered: What would lawyers say about the more than 35,000 tweets that already exist? After all, the damage may have already been done.
“The idea he would tweet without anyone reviewing it or thinking about what he’s saying is frankly pretty frightening,” says Larry Noble, general counsel of the Campaign Legal Center in Washington DC.
To that end, we asked legal professionals to assess whether they’d have given the green light to some of Trump’s most controversial Twitter moments on the campaign trail and in office. After all, yesterday’s covfefe could be tomorrow’s global catastrophe.
The debate as to whether tweets can be used as evidence of intent in court cases revolving around President Trump’s policies remains unsettled. “Tweets are not legal documents. They’re statements of policy, and that needs to be vetted by political people not legal people,” says Craig Engle, founder of the political law practice at Arent Fox.
But courts are already testing Engle’s premise. In the Hawaii court decision blocking President Trump’s travel ban, in March, Judge Derrick Watson cited the tweet above, which the plaintiffs said caused Muslim people harm by stigmatizing them.
“He has conflated Muslim immigration with terrorism, and that made it a religious issue,” says Noble. “It might be a slightly different issue when he’s on the campaign trail, but once you’re in office and tweeting these things out, it can be taken as a statement by the president.”
Instead, Noble would have geared Trump toward language focused on national security. “You start from an idea of what your policy is, and then you simplify the message as you need to,” he says.
Disparaging a judge—even a whole circuit of them—isn’t against the law. But it’s certainly not something that any lawyer worth his billable hours would advise. “As a lawyer, that is the worst, because it resonates with all judges,” says Dan Rhynhart, a commercial litigator with Blank Rome. “People want to reward good behavior, and sometimes, even subconsciously, punish people who they feel are acting badly.”
It seems President Trump’s own favorite legal scholar, Supreme Court Justice Neil Gorsuch, would have also advised the President against taking Twitter shots at the courts. During his Senate confirmation hearing, Gorsuch commented on the President’s tweet calling US District Judge James L. Robart a “so-called judge.”
“When anyone criticizes the honesty or integrity of the motives of a federal judge, well I find that disheartening. I find that demoralizing, because I know the truth,” Gorsuch said.
It’s also not a sound strategy for anyone looking to curry future favor in the judiciary. “As a lawyer I’d say why do you want to do this?” Noble says. “You don’t want to fight against the court in the press or on Twitter. You fight in the courts.”
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Any lawyer could have told Trump that the press enjoys broad protections when it comes to covering public figures—including, well, Trump. To file a libel suit, he would have to prove that the New York Times, or whichever media outlet he was mad at that day, had published something despite thinking it may be false. In the 1964 Supreme Court decision, New York Times Co. v. Sullivan, Justice William Brennan wrote about the importance of protecting debate on public issues, including “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
But any lawyer could also have told him that no president can change libel laws with the flick of his pen. Either the Supreme Court would have to overturn New York Times Co. v. Sullivan, or Congress would have to pass a Constitutional amendment.
“That goes to the heart of the First Amendment,” Noble says. “It is a dangerous position for him to be taking.”
The Comey “Tapes”
After firing Federal Bureau of Investigations director James Comey, President Trump teased a supposed set of “tapes” of his conversations with Comey on Twitter. Which would have been fine, if Trump were merely a real estate mogul. Instead, he’s the President of the United States, one whose political campaign has attracted an FBI investigation into Russian collusion. Threatening Comey to keep him quiet could be construed as intimidating a witness, Noble says.
But he argues the more immediate concern to any lawyer vetting such a threat would be whether the tapes existed in the first place. On the campaign trail, the president may have gotten used to dropping harmless hints to the press that quickly evaporate as soon as the next scandal surfaces. But, Noble says, “If he’s put under oath in an investigation, he’ll have to answer the question if there are tapes or not.”
Several congressional committees have since also requested copies of the tapes. Senator Mark Warner of Virginia, a ranking Democrat on the Senate Intelligence Committee, also said he would subpoena the recordings if the White House doesn’t readily hand them over. And while it’s unlikely the Republican chairs of the Senate Intelligence and Senate Judiciary committees would subpoena the president over this, Rhynhart says, “It ratchets up pressure on them.”
Ivanka v. Nordstrom
As the only president since Richard Nixon who hasn’t released his tax returns, Trump’s complex web of financial ties already draws constant scrutiny. So when, just weeks into his presidency, Trump tweeted that Nordstrom was treating his daughter unfairly by dropping her brand, ethics watchdogs kicked into overdrive. If lawyers were vetting Trump’s tweets then, it may not have gone out in the first place.
Technically, the president is exempt from laws forbidding conflicts of interest (KellyAnne Conway, who also promoted Ivanka’s brand on Twitter, is not). But Noble still would have given the Nordstrom tweet a red light. By promoting Ivanka’s brand on Twitter, he says, Trump is “stress-testing our democracy.”
“We have had these laws around for a while, and we basically worked on a function of good faith and that people would not try to push the envelope on these rules,” he says.
As the internet’s collective meltdown over the meaning of “covfefe” proves, the weight of the world rests on the President of the United States’ every word—no matter how nonsensical they may be.
BY: Issie Lapowsky