Monday, June 05, 2017

Trump Is Not Playing Ten-Dimensional Chess; He's Not Even Playing Checkers; He's Barely Playing Peekaboo

by Michael Dorf

[cross-posted on Take Care and Newsweek]

President Trump's latest tweetstorm regarding his It-Is-A-Travel-Ban-After-All was widely and correctly viewed by observers as potentially harmful to the effort by the Justice Department to defend the Ban by arguing that it's not a Ban. Indeed, the tweets were even more damaging to his case than generally acknowledged. Most of the discussion in the blogosphere has focused on Trump's use of the word "ban," but as I'll explain below, the real significance of the tweets is that they reaffirm that the Executive Order is a Muslim Ban.

I also want to explore the hypothesis--first floated by Jack Goldsmith in February under the title "Does Trump Want to Lose the EO Battle in Court?" and just now revived by Joseph Fishkin under the mirror image title "Does Trump Want to Win the Travel Ban Cases?"--that Trump is deliberately sabotaging the already weak case for sustaining the travel ban. I'll conclude that this is extremely unlikely. As they say in medical school, when you hear hoofbeats, think horses, not zebras. The most obvious explanation--Trump is an ignorant racist with no impulse control--should dominate more intricate theories.

In case you missed the tweetstorm, you can view it set to music by the president himself via a Facebook video. (Really. You can't make this stuff up.) Let's count the ways in which it's harmful to Trump's case:

1) By insisting on calling the executive order a travel ban after his spokespeople have been insisting that it is merely a temporary pause, Trump undermines the general credibility of people who speak on his behalf, including lawyers.

2) By referring to the travel ban, Trump connects the existing revised executive order to his campaign statements calling for a Muslim ban, thus undermining efforts by government lawyers to distinguish the executive order from the campaign statements.

3) By referring to the revised order as a "watered down" version of the original order, he further draws that connection, indicating that rather than the result of study and analysis by national security experts, the revised version was simply something concocted to get through the courts. Indeed, he says that much in the tweets and in this gem on the FB page promoting the video: "We need the Travel Ban — not the watered down, politically correct version the Justice Department submitted to the Supreme Court, but a MUCH TOUGHER version!" The best that could be said in Trump's defense here might be that he is under the misimpression that the revised executive order is something that the DOJ came up with in litigation, rather than what it is: an order that he himself signed. (Aside: Acting SG Jeff Wall: if you're reading this, maybe you should argue that Trump's tweets don't bear on the meaning of the executive order because he obviously has no idea what an executive order even is, much less what's in any particular one that he signed. You're welcome.)

4) By deriding the courts as "slow and political" Trump cannot have made it more likely that any justices who were on the fence would rule in his favor.

5) But most crucially, and to my mind, not sufficiently discussed, is the timing. This morning's tweetstorm must be understood as a continuation of the tweetstorm that Trump unleashed in response to Saturday night's terrorist attack in London. That earlier fusillade included the idea that the U.S. "need[s] the Travel Ban as an extra level of safety!" But how exactly is the Executive Order supposed to provide safety?

When Trump wrote the foregoing, the nationalities of the London attackers were unknown. In particular, Trump didn't know whether they were nationals of any of the six countries to which restrictions apply per the EO. He did know--or at least assumed--that the attackers were Muslim. Thus, it is a virtually inescapable conclusion that when Trump talks about "the Travel Ban" he means the "total and complete shutdown of Muslims entering the United States" that he touted during the campaign. And so when he says that the EO is a "watered down version" of "the Travel Ban" he can only mean that it is a watered down version of the Muslim Ban. That's why the tweets are so damaging to the government's litigation position. When one considers the timing, they very much reinforce points 2) and 3) above.

Oh, and by the way, it turns out that one of the London attackers was Pakistani. Pakistan is not on the EO list. A second attacker claimed to be from Morocco (also not on the list) and/or Libya (which is on the list). As of this writing, the nationality of the third attacker has not been made public. But it hardly matters. The key point is that in knowing (or believing) the attackers to be Muslims, Trump knew all he needed to know.

[Update: After I wrote the list above, I read Leah Litman's list, which I regard as complementary to the extent that it is not overlapping.]

* * *

Thus, we come to the question of why Trump tweeted what he did. Fishkin hedges a little by saying that Trump has a "strategy . . . even if it is a mostly intuitive one." An intuitive strategy would not require Trump to know what he is doing. He could be stumbling his way into something effective.

And what is that potentially effective something? According to Fishkin, crediting Jack Balkin, Trump aims to "exacerbate political polarization," which will ultimately work to his benefit by keeping his base angry and engaged.

Fishkin notes that the Muslim Ban litigation is potentially win-win for Trump. If he wins in court, he's a WINNER. If he loses, he can demonize the courts and use them as scapegoats if there's another terrorist attack (regardless of the nationality of the perpetrator).

But all of that was always true. If Fishkin is right, then Trump isn't trying to lose the Muslim Ban litigation, so much as he's indifferent to the outcome. Yet even attributing an attitude of indifference strikes me as attributing to Trump far too much rationality. It suggests that his prior attacks on the "so-called judge" and others who invalidated his Travel Ban were not simply Trump in a fit of pique but Trump playing a crafty game in which he really doesn't care about the outcome of litigation but is fanning the flames for his followers. I just don't see how that could have happened.

Trump does not have even a Schoolhouse Rock understanding of how American government works or what is in the executive orders he signs. When I said in the title of this essay that he's not playing ten-dimensional chess or even checkers, but is barely playing peekaboo, I meant it almost literally.

According to one account of childhood development, very young children find the game of peekaboo fun because it seems like a kind of magic. Not yet having learned to differentiate between the self and the outside world, the infant believes that when he cannot see the adult, the adult has vanished. Then the infant's eyes are uncovered and the adult reappears. Magic!

Trump is like that infant. When he learns something that he previously did not know, he announces it to the world as though he has made a great discovery. Health care is complicated! Andrew Jackson was a populist! The phrase priming the pump can be used as a metaphor for monetary policy! Trump didn't know these things before; therefore, his childlike mind reasons, neither did anyone else. Eureka!

A seventy-year-old infant as president can, as we have seen, do great damage to constitutional democracy and the norms that undergird it. But I doubt that he has the capacity to strategize his way into winning by losing in litigation he does not begin to understand.


Shag from Brookline said...

Mike, have some compassion. Trump is lonely in the White House suffering from "Melaniacoly."

Of course this is Schadenfreude time once again, which in due course OED may change to "Schadentrump."

el roam said...

Thanks for the post , it is normal and legitimate , to claim against the apparent overwhelming action of Trump in those travel bans issues , or the tightening of the immigration policy . Yet , I don't think that it is legitimate , to blame him for racism . In His speech in Saudi Arabia recently , he was very clear , here I quote :

"This is not a battle between different faiths…different sects, or different civilizations. This is a battle between barbaric criminals who seek to obliterate human life, and decent people of all religions who seek to protect it.”

End of quotation :

By that by the way , he has adopted , the previous administrations attitude , not to mix Islam as religion , with Terrorists ( especially not " Daesh " ) .

Besides it , the respectable author of the post , presumes , that he should understand , the court proceedings or discretion . But , why would he ?? Who does understand it ?? I have found very few who do , really do . Suppose that Bush was there : He could understand , what the hell those judges are doing ?? He could read and understand the rulings ?? Just the standing right , can drive a laymen , to madness . That's the way it is , and always been , and everywhere by the way . He is trying to do his best , to implement his policy , and the duty of the court , is to review it , from the aspects of the ruling of law and reasonableness .

P.S. : Obama , well , to my best knowledge , he is a professor ( or almost such ) for constitutional law , but even so , I doubt his real understanding , due to lack of experience in litigation !!
On the speech of Trump :


Shag from Brookline said...

But what did candidate Trump say about Muslims for over a year? Trump surely tempered his remarks in Saudi Arabia perhaps concerned with the messages of Sword Dance he participated in. There is an old American saying about looking through a pile of dreck for a pony to saddle up. This pile is huge. But the search may serve the purpose of a distraction that is not relevant to the post. Add to this the gratuitous reference to Obama. Animus?

Joe said...

Jack Goldsmith is among those who cite "the many ways that @realDonaldTrump's latest tweets hurt his court cases" including (if we need anything else) the courts not relying on assumptions of regularity of executive action to decide the question.

Jack Goldsmith was the guy who supported a lot of what Bush43 did but opposed the way he carried it out, including the lack of a sort of executive due process. As to the sabotage argument, sounds as cute as Rachel Maddow et. al. floating the idea that Trump really didn't want to win the election.

Unknown said...

Yes, a 70 year-old infant most likely with early-onset dementia like his father. (Although infants have much more impulse control and far greater potential for intellectual growth.)

You are right, Fishkin is wrong: There is no strategy (grand or otherwise) to his pathetic tweet storms. It is time to stop giving this sick creature that much credit, i.e., the ability to think logically, rationally, with a long-term goal in mind. Everyone needs to stop trying to analyze what he says or tweets as though he is a normal adult. He is not. Never has been. Never will be.

But the scariest aspect to this horrible situation is that probably 25-30 million or so Americans are still 100% in his corner. And the overwhelming majority of GOP politicians have not spoken out against his abhorent conduct.

As I previously stated on this blog: It all comes down to Mueller. Will he save America? Time will tell. But at this rate, time is running short and the Shining City on The Hill is on life-support.

David Ricardo said...

It does not seem likely that Trump is deliberately trying to lose the Supreme Court case or that he is indifferent to the outcome. It does seem likely that he wants to ‘win’ but is setting up an excuse if the Court should not overturn the lower court orders deferring implementation of the Ban (sorry Sean, we can all call it a Ban now since the President just jerked a giant Persian rug out from underneath you).

However if the Court rules against implementing the Ban immediately pending a full trial and ruling at the District level it does not seem likely Trump can escape blame and place it on the Court if there is a terror attack on U. S. soil. First of all, actual and intercepted terror attacks since 9/11 have mostly come from residents, not from individuals entering the country from abroad. And if an attack came from abroad but the attackers did not come from one of the targeted nations then the Ban was not relevant.

But even if a terror attack on U. S. soil were carried out by actors who were allowed into the nation even though they were coming from a target nation, the administration would still have to answer why their so-called ‘extreme vetting’ did not work. Remember, the Ban is supposed to be temporary and the administration is saying that in reality it is the ‘extreme vetting’ that what will keep terrorists out. There has been ample time to put ‘extreme vetting’ in place and the administration seems to be saying that they have done so, although no details are being released (not explaining what ‘extreme vetting’ is may not a bad thing if they really have put it in place, but methinks the reason they have not explained it is that they have not put any ‘extreme vetting’ in place as they found out intensive maximum vetting was already the policy). So failure to prevent foreign nationals from entering the country and carrying out an attack would seem to rest solely on the shoulders of Trump and his minions.

This is not to say Trump will accept any responsibility. Unconfirmed is the rumor that on his desk in the Oval Office is a placard that says “The Buck Stops There with arrows pointing to every window and door that leads out of the Oval Office.

Shag from Brookline said...

I think it's plausible that there is no method to Trump's madness. I keep thinking about why Nixon did not destroy the tapes. Trump may come up with a diversion to dwarf Comey's testimony on Thursday; it will be interesting how Republican Senators question him, i.e, to jeopardize or limit the ability of Mueller. (I'm thinking of a suggestion someone made about Ollie North in Iran-Contra getting an out because of certain failures of a congressional committee.)

Shag from Brookline said...

Trump apparently plans to tweet to challenge Comey's testimony under oath before a Senate Committee. Of course those tweets won't be under oath. Maybe Democrat Senators can ask Comey to respond, under oath, to those tweets in close to real time. Of course, the Senate should be concerned with separation of powers issues raised by such tweeting by Trump. Should the Committee require Senators on the Committee (and their staffs) to disclose if they are receiving such tweets in the course of the hearing?

Unknown said...

Good article, but I don't think the writer knows how to play peekaboo.

David Ricardo said...

The White House says Trump may live tweet Comey testimony.

And so the United States government disolves from being the most highly respected public body in the world, a body that on this D Day is remembered for coming to the aid of the world against Nazis and plunges first into comedy then farce and now turns into an ungodly circus.

Joe said...

"Are Trump's tweets considered official WH statements? Spicer: "They're considered official statements" by President."

[Q&A at press conference]

Okay. Are they considered official by anyone else?

Michael C. Dorf said...

Good comments but I choose only to reply to Edwin Cleverdon: You are right if you are implying that in "Peekaboo Classic" each player covers HIS OWN eyes with his hands, then uncovers them. However, in what we might call "Peekaboo Junior," an adult covers and then uncovers the infant's eyes, often with a washcloth or other item, because the infant lacks the ability to cover and uncover his own eyes. At least that's how I played the game when my kids were very young.

Shag from Brookline said...

Is there an originalism version of "Peekaboo" or has it evolved over time, including the influence of indoor plumbing and bathtubs? In the mid-1930s my family vacationed a week or so in the Summer with the family of one of the few living relatives my father had in a small mill town west of Worcester, MA. That was my first experience with an outhouse. Bathing of my cousins and my brother and myself took place in the kitchen in a large portable pail/tub filled with water heated on a Kitchen wood stove that was recycled with the addition of more hot water. There were 4 of us taking turns and no time for peekaboo. But forward to the late 1960s, '70s, I learned of peekaboo in assisting my wife bathing our young children and it was ad hoc. And with the twins, efficiency called for their communal baths in their early years. Which reminds me of the innocence of youth. Why does it disappear so quickly?

I met a neighbor at my local bank yesterday whom I had not seen for several years. She asked where my children were and told me her's were far off and that she misses them. As a parting comment I said I miss my children as well - until they come home. Remembering my children's innocence does not come easy as they are in their 40s having to deal with the age of Trump.

Mike's peekaboo analysis need not be parsed too closely. There are variations of the game. I wonder how the Forgotten of Trump's voter base recall peekaboo. Perhaps a new version is Trump's "Peek-a-Tweet." It's not the same as Art Linkletter's "out of the mouths of babies."

Joe said...

edwin cleverdon might be an originalist: some people think there is only one way to do things. Michael Dorf shows he is a "living constitutionalist" by not following the "classic" form of the game. His version is also vegan-friendly. Not sure how classic peek-a-boo is not, but probably isn't in some fashion.