As he tries to fend off special counsel Robert Mueller's widening investigation, President Donald Trump is having trouble hiring attorneys. Besides the fact that Trump has a reputation for stiffing people who work for him (including his lawyers), another reason for that is his insistence on making his attorneys pursue absurd legal strategies, such as attacking investigators looking into the Russian election interference scandal. Going after Mueller and the FBI has evidently helped keep Trump’s base loyal to him, but the miasma of conspiracy theories coughed up by the president’s most ardent defenders has no legal bearing on Mueller’s various cases.
Last week provided another example of Trump’s tendency to humiliate the attorneys he does have at his disposal: The Department of Justice told a New York federal district court last Wednesday that Trump has the right to block people on Twitter from reading his official accounts, @POTUS and @WhiteHouse, in addition to banning them from following his personal account, @realDonaldTrump.
The DOJ’s response to Judge Naomi Reice Buchwald’s inquiry as to whether the administration sees any distinction between the account Trump had before he became president (which he still uses to make many official announcements) and the two he inherited after he was inaugurated is absurdly pugnacious. It's the digital equivalent of trying to ban citizens from reading official court notices in print publications or banning reading an elected official's website.
Even more ludicrous is that while the Trump administration invokes “the right not to associate” as an aspect of free speech, it does nothing to address the obvious point that Trump could easily use Twitter’s “mute” function to hide messages from people he doesn’t like from showing up in his timeline.
A few weeks earlier, on March 8, Buchwald repeatedly suggested that the president and the Justice Department were wasting taxpayers' money by keeping the case in court instead of pursuing that simple solution.
“Isn’t the answer he just mutes the person he finds personally offensive?” the judge asked. “He can avoid hearing them by muting them.”
“Why are we here?” Buchwald said. “Don’t we have a solution that serves the interests of the plaintiffs, serves the interests of the president?”
Katherine Fallow, a senior attorney with the Knight First Amendment Institute, the free speech group representing the plaintiffs, said that the administration’s response did not address any of the primary points of dispute in the case.
“We are going to be filing our formal response very soon, but reading through the letter, there is nothing new here. It’s just restating the same things they’ve already said in different language,” she told Salon.
In court, the administration’s lead attorney for the suit, Michael Baer, indicated that Twitter-muting could indeed enable the president to avoid messages he doesn’t want to see. In spite of that the White House appears to be interested in pressing forward with its case that the president should also be able to block whomever he wants.
In the Justice Department's response last Wednesday, Baer and his colleagues went out of their way to indicate that while the judge might have believed the Trump team had conceded in court that his personal Twitter account and his official ones were different, the administration drew no such distinction:
As an initial matter, the government does not concede — and did not mean to concede at oral argument — that blocking users from those two [official] accounts would run afoul of the First Amendment.
It is not clear when this case will be decided, but in the hearing earlier this mont, Buchwald warned that Trump’s refusal to mute Twitter users he doesn’t like may result in an unfavorable verdict.
“If there’s a settlement that serves the interests of all parties," she cautioned, "it’s often considered the wisest way to go.”