The courts keep taking Donald Trump both seriously and literally. And the president's word choices are proving to be a real headache.
A federal judge in Kentucky is the latest to take Trump at his word when he says something controversial. Judge David J Hale ruled against efforts by Trump's attorneys to throw out a lawsuit accusing him of inciting violence against protesters at a March 2016 campaign rally in Louisville.
At the rally, Trump repeatedly said "get 'em out" and "get 'em the hell out of here" before, according to the protesters, they were shoved and punched by his supporters. Trump's attorneys sought to have the case dismissed on free speech grounds, arguing that he didn't intend for his supporters to use force. But Hale noted that speech inciting violence is not protected by the First Amendment and ruled that there is plenty of evidence that the protesters' injuries were a "direct and proximate result" of Trump's words.
"It is plausible that Trump's direction to 'get 'em out of here' advocated the use of force," Hale wrote. "It was an order, an instruction, a command."
It's merely the latest example of Trump's team arguing that his controversial words shouldn't be taken literally. But though that argument may have held water politically during the 2016 campaign, it has since repeatedly hurt Trump's cause when his words have been at issue in legal proceedings.
Just last week, a federal charge in Hawaii rejected an argument from Trump's attorneys asking that his travel ban executive order be evaluated without considering Trump's and his team's past comments about the motive behind the ban and whether it targets Muslims.
Trump's campaign in 2015 proposed a blanket ban on all Muslim immigration to the United States the news release remains on his campaign website to this day – and the courts ruled that this rhetoric was relevant when it halted his first travel ban, despite Trump's team arguing that it wasn't a Muslim ban. In striking down the first travel ban, the courts cited Rudy Giuliani's comments that suggested Trump sought to make his Muslim ban idea legally practical.
"So when first announced it, he said, 'Muslim ban'," Giuliani said. "He called me up. He said, 'Put a commission together. Show me the right way to do it legally.'"
When Trump and his team issued a revised travel ban a few weeks ago, the courts again halted it and again cited that past rhetoric.
And in extending that order last week, the federal judge in Hawaii yet again cited the words of Trump's team – specifically, top adviser Stephen Miller, who had suggested the second ban would be, practically speaking, the same as the first.
The controversial orders Donald Trump has already issued
The controversial orders Donald Trump has already issued
1/8 Trump and the media
White House Press Secretary Sean Spicer takes questions during the daily press briefing
2/8 Trump and the Trans-Pacific Partnership
Union leaders applaud US President Donald Trump for signing an executive order withdrawing the US from the Trans-Pacific Partnership negotiations during a meeting in the Roosevelt Room of the White House in Washington DC
3/8 Trump and the Mexico wall
People protest against US President Donald Trump's inauguration next to a fake wall with a Mexican national flag and a dummy representing him in Mexico City
4/8 Trump and the Mexico wall
A US Border Patrol vehicle sits waiting for illegal immigrants at a fence opening near the US-Mexico border near McAllen, Texas. The number of incoming immigrants has surged ahead of the upcoming Presidential inauguration of Donald Trump, who has pledged to build a wall along the US-Mexico border
5/8 Trump and abortion
US President Donald Trump signs an executive order as Chief of Staff Reince Priebus looks on in the Oval Office of the White House
6/8 Trump and the Dakota Access pipeline
Opponents of the Keystone XL and Dakota Access pipelines hold a rally as they protest US President Donald Trump's executive orders advancing their construction, at Columbus Circle in New York. US President Donald Trump signed executive orders reviving the construction of two controversial oil pipelines, but said the projects would be subject to renegotiation
7/8 Trump and the Dakota Access pipeline
US actress and political activist Jane Fonda attends a rally with opponents of the Keystone XL and Dakota Access pipelines as they protest US President Donald Trump's executive orders advancing their construction, at Columbus Circle in New York
8/8 Trump and 'Obamacare'
Nancy Pelosi who is the minority leader of the House of Representatives speaks beside House Democrats at an event to protect the Affordable Care Act in Los Angeles, California. The Republican-led US Senate has launched their much-anticipated effort to repeal the Affordable Care Act by passing a budget blueprint which would allow them to begin rolling back the health care reforms
"Fundamentally, you're still going to have the same basic policy outcome for the country, but you're going to be responsive to a lot of very technical issues that were brought up by the court, and those will be addressed," Miller said. "But, in terms of protecting the country, those basic policies are still going to be in effect."
Trump and his team will undoubtedly dismiss this latest example as yet another activist judge who is out to get him. But yet again, they are forced into the position of saying that Trump's words shouldn't be taken at face value – that he didn't mean what he actually, literally said.
Critics have argued that this is a completely unworkable standard when it comes to the media's coverage of Trump, saying it allows Trump team members to retroactively downgrade whatever they want to, while leaving the good stuff intact – essentially a Get Out of Jail Free card they can redeem any time they want to.
But while Trump's supporters have certainly bought into that arrangement, the courts have yet again proved unwilling to grant the president that Get Out of Jail Free card.
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