US President-elect Donald Trump leaves a meeting with Senate Majority Leader Mitch McConnell at the Capitol in Washington, DC, on November 10, 2016.
Trump tweetstorm precedes Cabinet appointments
03:08 - Source: CNN

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Trump's flag burning tweet seemed to look past two Supreme Court rulings

Big question is whether Trump's comments should be interpreted as a sign of intent

CNN  — 

In 51 days, Donald Trump will swear to preserve, protect and defend the Constitution. But judging from his red hot Twitter feed, Trump is already chafing at its constraints.

The President-elect called Tuesday for punishing anyone who burns the American flag by “perhaps” jailing them – or even stripping them of citizenship. The Twitter broadside revived concerns that the incoming President isn’t fully aware of the limits he will face in office or that he may try to eliminate as many curbs as possible.

The early morning blast was classic Trump, picking at an emotive political scar that enlivens his most loyal supporters, hijacking news coverage and forcing everyone in Washington to respond to his own controversial views – and then wonder if he really means it. It’s a tactic familiar from the presidential campaign when Trump’s mastery at wielding Twitter as a weapon was at the heart of his battle plan that demolished the Bush and Clinton political dynasties.

Why Donald Trump won’t change

But the tweet was especially notable because it seemed to look past two Supreme Court rulings that held flag burning is form of free speech protected by the First Amendment. The late Justice Antonin Scalia, who Trump has lauded as a judicial hero and model for his future nominees, was a crucial vote supporting the majority in each case.

The big question is whether Trump’s comments, which would be extraordinary coming from any other incoming president, should be interpreted as a sign of intent or simply another example of the unusual way in which he blows off steam so publicly.


“It is pretty remarkable that the President-elect of the United States is calling for penalties, criminal penalties for protected speech,” said CNN senior legal analyst Jeffrey Toobin on Tuesday. “Why is he doing this? That is the question. Is he trying to distract attention from something else? I don’t know why he would be, his transition seems to be going pretty well. What is the purpose behind this? I don’t really get it.”

David Axelrod, a CNN political analyst and former strategist for President Barack Obama, encouraged his Twitter followers Tuesday to pay less attention to what Trump says and more to how he behaves.

“Pressing issue of the day? Best to ignore, unless & until it becomes something more than an AM red meat serving from Dr. Trump & Mr. Tweet,” Axelrod tweeted.

Still, the spectacle of a President-elect calling for someone to be disowned by their nation for exercising their constitutional rights – albeit while acting in a way many Americans find distasteful – is a shocking one.

It is extraordinarily difficult for the federal government to strip a natural born American of their citizenship. Such a move requires an act of will upon the part of the person, such as treason. And given the checks and balances of the political system, it’s unlikely that Trump could enact a law corresponding with his tweet that would withstand a court challenge.

What the Supreme Court has said about flag burning

Yet one reason Trump’s salvos get so much attention is because he has frequently left the impression that as president, he will nudge right up against the Constitution.

His proposal for a ban on Muslim immigration during the campaign – since watered down – appeared to conflict with the constitutional guarantees of religious freedom.

Some legal analysts, meanwhile, have warned that that the Emoluments clause in the Constitution – which bars gifts being paid to top officials from foreign governments – could trip Trump up if he fails to draw a firm line between his global business interests and his administration.

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Trump also sparked alarm when he told journalists at The New York Times this month that “the law is totally on my side, meaning, the President can’t have a conflict of interest.”

Attacks on news organizations

Trump’s attacks on news organizations, including CNN and The New York Times, have also worried those who fear he has the First Amendment in his sights. He warned during the campaign that he would “open up” libel laws to make it easier for him to sue news organizations if he was elected president.

But one of the emerging characteristics of Trump’s presidential transition that is likely to linger on in his administration is the difficulty in discerning exactly how serious to take his threats and bluster.

Asked by New York Times Chief Executive Officer Mark Thompson in the meeting with the paper’s journalists and executives whether he respected the First Amendment, Trump was conciliatory.

“I think you’ll be happy,” he said. “I think you’ll be happy … I think you’ll be O.K. I think you’re going to be fine.”

Some Democrats, wary of presidential overreach, say there’s no choice but to take Trump at his word.

“When do we take Donald Trump seriously? My answer to that question is February 2016, when none of us took him seriously and now he is the President-elect,” said Mark Alderman, a Democratic strategist and former Electoral College elector.

“I am done not taking him seriously,” said Alderman, who is chairman of Cozen O’Connor Public Strategies. “I have at least learned that lesson. I think everything that the man does has to be taken seriously because he has demonstrated over the last 18 months that he was serious about being nominated.”

He added: “He was serious about being elected. It would be a mistake to say he is not serious about governing and serious about what he says about governing.”

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The White House took Trump’s remarks at face value, warning that there should be no infringements on free speech, even though most Americans oppose flag burning.

“The freedom that we all have to express ourselves in the way that we chose to do so is protected by the United States Constitution,” White House spokesman Josh Earnest said Tuesday. “The need to protect those rights is in place to protect speech and expression not just when we agree with it but also when we find it offensive.”

Republican Senate Majority Leader Mitch McConnell parried questions about Trump’s comments by framing the constitutional position on flag burning as a decided issue.

“The Supreme Court has held that activity is a protected First Amendment right, a form of unpleasant speech and in this country, we have a long tradition of respecting unpleasant speech,” McConnell said. “I happen to support the Supreme Court’s decision on that matter.”

GOP’s default posture

Deflecting and ignoring a politically loaded Trump tweet could become a default Republican posture once the President-elect is sworn in. But one top Republican seems to have enough of it already.

Arizona Sen. John McCain, who chairs the Armed Services Committee, told CNN’s Manu Raju Tuesday that he doesn’t like flag burning, which he sees as an insult to his fellow veterans. But he noted that it has been decreed an act of free speech and wouldn’t talk about Trump.

“I have not been commenting on Mr. Trump and I will continue not to comment on Mr. Trump,” McCain said. “My time is devoted to trying to make sure this nation is secure, not to comment on every comment of Mr. Trump’s.”