WASHINGTON, July 9, 2019 — A three-judge panel of the Second Circuit Court of Appeals has found that President Donald Trump’s use of Twitter’s “block” feature against his critics violates the First Amendment because he uses his private Twitter account for official government business.
The unanimous decision upholds a prior district court ruling which rejected the Justice Department’s argument that Trump was acting as a private individual when he blocked several critics from viewing tweets on the @realDonaldTrump Twitter account.
“[The] First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees,” Circuit Judge Barrington Parker explained.
Barrington, who was named to the Second Circuit by President George W. Bush, took care to note that the court did not consider whether elected officials could block users from a “wholly private” social media account.
“The salient issues in this case arise from the decision of the President to use a relatively new type of social media platform to conduct official business and to interact with the public,” he wrote.
Writing for himself and his colleagues — George W. Bush appointee Peter Hall and Obama appointee Christopher F. Droney — Barrington explained that the court found that Trump “has consistently used the [@realDonaldTrump] Account as an important tool of governance and executive outreach,” based on his use of Twitter to announce personnel actions, promote administration initiatives, and numerous statements from administration officials which concede that his tweets are official statements from the President of the United States.
The three judges were “not persuaded” by the Justice Department’s arguments that the President’s Twitter account is a private vehicle for his own use and not a public forum, that blocking an individual does not prevent a user from accessing Trump’s tweets, or that the tweets are exempt from the First Amendment under the “government speech” doctrine.
“We conclude that the evidence of the official nature of the Account is overwhelming. We also conclude that once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.” he wrote.
When reached by email, Justice Department spokesperson Kelly Laco reiterated the government’s argument that Trump’s decision to block users from his personal Twitter account does not violate the First Amendment.
“We are disappointed with the court’s decision and are exploring possible next steps,” she wrote.
As Trump Tweets to Downplay Associates’ Felony Pleas, One Judiciary Committee Dem Says He Has “Ethics of a Mob Boss”
WASHINGTON, August 22, 2018 — In a series of tweets coming less than 24 hours after two of his closest associates from the 2016 campaign became convicted felons, President Trump praised one for refusing to cooperate with the Justice Department while simultaneously downplaying the seriousness of the other’s crimes and attacking him for accepting a plea deal from prosecutors.
“I feel very badly for Paul Manafort and his wonderful family. ‘Justice’ took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to “break” – make up stories in order to get a “deal.” Such respect for a brave man!” Trump wrote early Wednesday, shortly after tweeting out a suggestion that those looking for “a good lawyer” not retain Cohen’s services.
Trump’s morning “Executive Time” tweet storm came the day after what some have described as the worst day of Trump’s presidency. But if Trump thought Tuesday was bleak after Manafort — his former campaign chairman — was convicted of eight counts of fraud and tax evasion in the first of two criminal trials he is facing at the hands of Special Counsel Robert Mueller and his team, things got even bleaker when Cohen, his longtime attorney and fixer pleaded guilty to charges of bank fraud and campaign finance violations.
It is not known whether Cohen will cooperate with prosecutors, though his attorney, Lanny Davis, suggested in an interview on MSNBC that the former Trump lawyer had information to offer on the Russian government’s 2016 cyberattack against the Democratic National Committee.
Cohen charges result of ‘hush money’ payments
The charges against Cohen stemmed from his efforts to pay several women with whom Trump had had affairs in order to keep them from upending his electoral changes by going public. Cohen initially claimed he’d paid them with his own money until it was revealed that he’d accepted reimbursement from the Trump Organization.
Cohen, who once famously said he’d take a bullet for the president, took the deliberate step of implicating Trump directly during his plea hearing by reading a prepared statement in which he told U.S. District Judge Kimba Wood that he’d made the illegal payments “in coordination with and at the direction of a candidate for federal office.”
Trump pointed to Obama’s 2008 campaign as proof that Cohen had been treated unfairly, but experts don’t agree
Continuing to tweet Wednesday morning, Trump attempted to downplay the significance of Cohen’s transgressions and deflect attention to a familiar scapegoat — his predecessor.
“Michael Cohen plead guilty to two counts of campaign finance violations that are not a crime. President Obama had a big campaign finance violation and it was easily settled!” Trump wrote, referring to a $375,000 fine the Federal Election Commission levied in 2013 against then-President Barack Obama’s 2008 campaign. The fine was for failing to file so-called “48-hour notices” for $1.8 million worth of contributions over $1,000 received during the last 20 days of the 2008 campaign.
In an interview with BeltwayBreakfast, House Judiciary Committee member Rep. Jamie Raskin, D-Md., scoffed at the notion that Cohen’s crimes were in any way comparable to the violations the FEC settled with the Obama campaign.
“The halfhearted gesture at a technical campaign finance violation is an irrelevant distraction from whats going on here. Everybody agrees that technical violations of reporting requirements are dealt with as violations of administrative law, but deliberate violations and circumventions of material campaign finance requirements have always been treated as criminal.”
Raskin noted that the law prohibiting corporations like the Trump Organization from directly making campaign contributions — the Tillman Act — has been on the books since 1907.
“It’s very clear that if the corporation is coordinating with the candidate in its contribution that it should be treated as a contribution rather than an expenditure,” he said.
Renato Mariotti, a former Assistant U.S. Attorney and onetime candidate for Illinois Attorney General, told BeltwayBreakfast that Trump’s claims that Cohen’s violations could’ve been dealt with by the FEC as a civil matter are baseless.
“A federal judge would not have accepted Cohen’s plea if he was not pleading guilty to a crime,” Mariotti said in a text message, adding that Cohen’s attorneys, the Justice Department and the judge all concluded that Cohen had committed crimes and not a less serious violation of election law.
Raskin says US is in grip of ‘overwhelming political crisis’
While Raskin, who teaches constitutional law at American University, did not think Tuesday’s events had the makings of a constitutional crisis, he said the nation was in the grip of “an overwhelming political crisis that emanates from the White House.”
“This is a president who maligns and disrespects the law at every turn, it never would’ve occurred to him that there was something wrong with spending hundreds of thousands of worth of hush money on his affairs with pornographic stars and having his company pay for it,” said Raskin. “If everything Michael Cohen is saying turns out to be true, the president himself is implicated in willful campaign finance violations. Certainly, this is more than Bill Clinton telling one lie about a sexual relationship that he had.”
Raskin said that Trump — who once claimed to hire “the best people” — has developed “a staph infection that has spread entirely through his campaign and his administration,” leaving the president “up to his neck in the criminality of his associates.”
As for Trump’s continuing insistence that Manafort is “a good man,” Raskin suggested that Trump’s capacity for praise would only hold as long as his former campaign chairman refused to cooperate with prosecutors.
Raskin compared ‘The Donald’ to a Mafia Don
“The president brings the ethics of a mob boss to all of the criminality around him. If a particular operative stays putatively loyal, he will endeavor to reward them but if they tell the truth…they’re dead to him and he considers them part of the ‘rigged witch hunt and deep state conspiracy,” he said.
While Raskin observed that Trump “would certainly have no ethical scruples” about using his pardon power to reward Manafort for not helping Mueller’s team, he suggested that one of the president’s advisers might be waving him off from issuing a pardon that would obviously benefit him.
“Somebody at the White House obviously understands that the use of the pardon power in Trump’s own personal wars certainly invites demand for impeachment,” he said, “The use of the pardon for corrupt purposes would undoubtedly be seen as a high crime and misdemeanor by large numbers of people in Congress.”
Congressman Who Teaches Constitutional Law Says Trump’s Latest Tweets Reveal ‘The Mind Of A King’
WASHINGTON, June 4, 2018 – A Democratic congressman and constitutional law professor says President Trump’s latest tweets on the constitutionality of Robert Mueller’s probe into Russia’s election meddling, his pardon power and trade deficits represent “a brazen expansion of the president’s monarchical pretensions.”
“The president has revealed that he has the mind of a king,” said Rep. Jamie Raskin, D-Md., who has taught constitutional law at American University’s Washington College of Law since 1990. “Whether he’s a mad king or not is in the eye of the beholder.”
Raskin spoke with BeltwayBreakfast shortly after President Trump capped off a Monday morning tweetstorm by claiming the appointment of former FBI director Robert S. Mueller III as a special prosecutor was unconstitutional.
“The appointment of the Special Counsel is totally unconstitutional!” Trump wrote, adding that despite that, his administration “[plays] the game because I, unlike the Democrats, have done nothing wrong!”
Separate Tweets on pardon power and presidential authority on trade
In separate tweets – which the White House has said are official statements by the president – Trump also claimed that “numerous legal scholars” have said he has “the absolute right to pardon himself,” and that he will end trade deficits by negotiating deals to prevent “Mexico, Canada, China and others” from treating “U.S. farmers and other businesses” unfairly.
Raskin first weighed in on Trump’s claim that Mueller’s appointment was unconstitutional, noting that the tweet was so vague that it was unclear whether the president was arguing that only Mueller’s investigation was unconstitutional, or if he was referring to all investigations involving the appointment of a special prosecutor.
It would be hard for either argument to stick, Raskin said, in light of a 7-1 Supreme Court decision in 1988, Morrison v. Olson, upholding the 1978 Independent Counsel Act. That precedent empowered prosecutors like Kenneth W. Starr, the former independent counsel whose investigation led to Bill Clinton’s impeachment.
The 1978 law, Raskin said, was found to be constitutional even though it granted special prosecutors even more powers than Mueller, a mere special prosecutor, has under the regulations governing his appointment.
Trump’s claims are beyond that of the ‘unitary executive’ theory
Previous presidents have staked out an expansive view of executive authority under a constitutional theory known as the “unitary executive.” Such a theory claims that the constitution allows a president to directly control the entire executive branch.
But for Raskin, Trump’s latest argument amounts to a belief that “anything which offends him on any given day is unconstitutional,” which, to him, makes Trump sound less like George W. Bush and a lot more like France’s Louis XIV.
“Essentially we’ve arrived at the argument of ‘L’Etat, C’est Moi,’ he said.
In Raskin’s view, Trump’s assertions of such wide unfettered authority represent “a brazen expansion of the president’s monarchical pretensions,” and go against the very principles on which the United States was founded.
“The whole point of our revolution and our constitution was to reject monarchy. The president’s primary responsibility is to take care that the laws are faithfully executed,” he said.
“This president thinks that the laws simply don’t apply to him, and if he doesn’t like them, they’re unconstitutional.”
Legal scholars are not united in favoring Trump’s monarchical pretensions
Raskin further said Trump’s claim that numerous legal scholars say he has the absolute right to pardon himself was “clearly in contradiction of law and the constitution,” and that his proposed grant of clemency to disgraced Illinois governor Rod Blagojevich was “chilling.”
“Now the White House is arguing that there are no limits to the pardon power. They are essentially arguing that they can sell pardons and can promise people pardons for criminal conduct,” Raskin said.
“The only question is whether the proper response to a corrupt pardon is impeachment or prosecution, but it is clearly wrong to say that the president can sell a pardon or offer a pardon for corrupt purposes.”
Trump’s “monarchical pretensions” also extends to his use of a little-used national security law to unilaterally impose tariffs on many of America’s allies, Raskin added.
“Even if you grant the president wide authority under the various trade provisions, there still has to be some rational basis for his actions, that means there’d have to be some rational argument that national security is implicated,” he said.
Raskin called particular attention to Trump’s claim that trade deficits are evidence of bad trade deals, noting that the president’s idea of a good trade deal appears to be one that forces other countries to buy American goods.
“Befitting a king, Trump wants to return our economic and trade policies to the mercantilism of the 16th and 17th centuries,” he said.
White House Economic Advisers Defend Trump’s Job Numbers Spoiler
WASHINGTON, June 1, 2018 — Council of Economic Advisers Chairman Kevin Hassett and National Economic Council Director Larry Kudlow on Friday defended President Trump’s decision to tweet about the Bureau of Labor Statistics monthly unemployment numbers over an hour before they were to be released publicly.
The BLS normally releases its monthly jobs report for the previous month at 8:30 am on the first Friday of every month. Their release, which can significantly move markets, is carefully guarded under Office of Management and Budget rules set out in the innocuously-named Statistical Policy Directive N0. 3.
While OMB rules allow the president and others to be briefed on those numbers “so long as there is no risk of prerelease disclosure or use,” the rules also say agencies “must ensure that adequate steps (e.g., sequestering those granted access) are taken to prevent prerelease disclosure or use.”
Nevertheless, the president weighed on the monthly numbers on Twitter early Friday, writing at 7:21 am: “Looking forward to seeing the unemployment numbers at 8:30 am this morning.”
When asked about the president’s tweet, Hassett said Trump’s interest in the numbers is “extremely appropriate” and defended the president by noting that he didn’t release the actual numbers early.
“[Trump] didn’t put the numbers in a tweet or anything, and I can tell you that he loves the economic numbers, we talk about them often, and the meetings go really, really long because he’s trying to help America’s workers especially, and so the jobs report is probably the most important thing for that.”
Hassett explained that Trump had been briefed on the jobs report Thursday night, but when asked whether the president had spoken to anyone about the numbers between the briefing and his tweet Friday, he said he hadn’t spoken to anyone about the possibility.
When asked whether it was appropriate for the president to tweet about the jobs report before its official release, National Economic Council Director Larry Kudlow responded: “Why not? He didn’t give anything to anyone.”
When it was pointed out that the jobs report routinely moves markets, Kudlow noted that short sellers might have concluded that the president was gaming him and not done anything with them and stressed that Trump did nothing wrong because he didn’t tweet out the actual numbers.
Asked whether Trump had violated the OMB policy directive, Kudlow denied it, repeating that the numbers had not been revealed to the public.
“No one revealed the numbers to the public,” he said.
When it was pointed out to Kudlow that the president would have no reason to tweet about a jobs report that was not positive and asked why Trump would’ve tweeted about a negative jobs report,” Kudlow dismissed the question as “a therapy thing.”