After President Trump took to Twitter on Monday to defend the merits of his “travel ban” (his words) on visitors to the U.S. from six predominantly Muslim countries, a series of surrogates stepped forward to try to undo the damage to the administration’s defense of the ban in the courts.
Sebastian Gorka, an adviser to Trump, told CNN that tweets “are not policy… [they’re] social media.” In short, Gorka reasoned as follows: Only policy binds the president. Tweets are not policy. Therefore, tweets cannot bind the president.
The premises put forward by Gorka miss the point. Tweets are statements. Under the Federal Rules of Evidence, out-of-court statements, including those made on social media, will be excluded as hearsay if they are used to prove the truth of the matter asserted.
But a statement that would otherwise be hearsay falls outside the definition of hearsay (and therefore can be used in court) if a party to the litigation (insert Trump) said it, and the statement is offered against that party by his opponent (insert those challenging the travel ban).
If you wonder whether Trump is a party to the litigation over his travel ban, here’s how his lawyers captioned the brief they filed on Thursday asking the Supreme Court to revive the ban, which has been blocked by the Fourth Circuit:
Statements via social media are still statements
A statement made through social media fits the exclusion from hearsay so long as it is offered against, not by, the party who made it. As District Judge J. Michelle Childs explains in an article for the American Bar Association:
Social media sites seem designed specifically for users to assert their views, relate their experiences, manifest agreement with others’ opinions, and acknowledge others’ activities. Courts have found these activities to come under [the rule’s] exclusion from hearsay by admission. For example, a plaintiff’s sexually explicit Facebook comments were not hearsay when used by the defendant to show that the defendant’s remarks concerning similar conduct should not be considered harassment against the plaintiff.
Of course, Trump’s lawyers know this, which is how we know that no lawyers reviewed his tweets. The lawyers for those challenging the travel ban know it, too, which is why they welcomed the tweets. Here’s reaction from Neal Katyal, who argued on behalf of the challengers in the Ninth Circuit:
Its kinda odd to have the defendant in HawaiivTrump acting as our co-counsel.We don't need the help but will take it! pic.twitter.com/8ehqkLkOY2
— Neal Katyal (@neal_katyal) June 5, 2017
And here’s reaction from Omar Jadwat, the attorney who persuaded the Fourth Circuit to suspend the travel ban:
Don't let them shut you down! Keep tweeting! https://t.co/jQ6flRvoRH
— Omar C. Jadwat (@OmarJadwat) June 6, 2017
Trump’s lawyers argue that if you set aside statements by Trump and his surrogates during the campaign (and a few statements following the inauguration) you’ll see that the appeals court erred in enjoining the travel ban. The presidential oath of office transformed Trump into the chief executive, whose determinations regarding immigration policy are entitled to deference by the courts, say his lawyers:
Taking that oath marks a profound transition from private life to the Nation’s highest public office, and manifests the singular responsibility and independent authority to protect the welfare of the Nation that the Constitution reposes in the President.
Trump shattered that notion in five 140-character outbursts. Expect to read his tweets in papers the Supreme Court has asked the challengers to file by this Monday. Yet in the end, the travel ban will fall not because the president tweeted about it. The travel ban will fall because it disfavors a particular religion in violation of the Constitution.