The thing about lawsuits and making stuff up is you just cannot predict how things will turn out. Pres. Trump has been sued by the James Madison Project, an intelligence watchdog group, and Politico seeking documents related to his tweets that are in turn related to Russia. In James Madison Project v. Dept. of Justice, DOJ argued that the tweets are public statements, “official” statements of the President. One or more of his tweets claimed the Steele dossier was “discredited.” So, the James Madison Project and Politco are seeking whatever documents support the claim that the dossier was “discredited.”
Yet, in another case, some twitter users have sued the President for blocking them. They seek the right to reply to his tweets. He does not like their comments, so he has blocked them on his twitter account. Those twitter users have sued the President and Twitter to become unblocked. (Only in 2017 would we have a lawsuit requesting a government official to “unblock” them). Their point is that if these were traditional public statements, they could indeed react or ask questions. So, they argue that his tweets are a public forum.
In this second lawsuit, known as Knight First Amendment Institute at Columbia Univ. v. Trump, DOJ has argued that yes, while the tweets are official statements, they are also “personal conduct that is not an exercise of state power.” DOJ has moved for summary judgment, arguing that the tweets are maybe not so official, after all. In its motion for summary judgment, the DOJ argued, “To be sure, the President’s account identifies his office, and his tweets make official statements about the policies of his administration.” “But the fact that the President may ‘announce the actions of state’ through his Twitter account does not mean that all actions related to that account are attributable to the state.” In the legal business, we call that double speak. It is also considered a “judicial admission” when a person contradicts himself in one lawsuit, as opposed to another lawsuit. The President tried one lie or exaggeration in one case and found he had to adjust his “story” a bit for a second, different lawsuit. Both sides in this lawsuit have moved for summary judgment. See ABA Bar Journal report.
And, of course, just last weekend, Pres. Trump tweeted that he fired James Comey because Mike Flynn lied to the FBI. That tweet suggested Pres. Trump knew Mr. Flynn was obstructing justice weeks before the President fired him. So, when Pres. Trump fired Mr. Comey, he may have done so to help LTG(R) Flynn. And, now, Pres. Trump’s lawyer, John Dowd, claims he wrote the tweet. That claim will surely lead to the need to further adjust the “story” that the President’s tweets are “official.” Why would a personal lawyer be drafting “official” statements for the President? What regulations or statutes will that violate? The problem with creating a “story” for one’s defense is that keeping that story straight is very challenging.
That is why in employment cases, the employer’s articulated reason for firing an employee is so critical. If the employer does not know why someone was fired, then no one knows. Or, in this case, if the the President does not know what his tweets are, then it may well be that no one knows.