President Donald Trump announced that he will address the American people Tuesday evening in a televised address from the Oval Office. There is a possibility that he will use the time to announce that he is declaring a national state of emergency over border security, a move that would give him increased power to potentially use government resources to build a wall along the Mexican border. While the administration has not confirmed whether Trump has decided to take this step, it is an idea that he has floated lately as a means of circumventing opposition from Democrats in Congress. If he does take this route, it will almost certainly be met swiftly with a challenge in court, and the president’s case may be undermined by the administration’s own comments, according to a former White House attorney.

“He has fatally compromised his ability to defend this,” said Robert Bauer, White House counsel under President Barack Obama, to the Washington Post. “He has so politicized the issue, and he has been so reckless in his presentation of what the stakes are that he walks into court with two strikes against him, the ball about to break over the plate, and he’s swinging too late.”

That presentation of the stakes includes misleading statistics regarding people who have tried to enter the country recently. In an interview with Chris Wallace on Fox News Sunday, White House Press Secretary Sarah Sanders claimed that border officials have “stopped over 3,000 what we call special interest aliens trying to come into the country on the southern border.” Wallace noted that the term “special interest aliens” only refers to the aliens’ countries of origin, not any designation regarding the people themselves. Wallace said that a recent report showed that, according to the State Department, “there were no credible evidence of any terrorist coming across the border from Mexico.” That report covered fiscal year 2017. Customs and Border Protection data showed that in the first half of fiscal year 2018, six people on a list of known or suspected terrorists tried to enter the country along the Mexican border, according to NBC.

Sanders pushed forward, claiming that “nearly 4,000 known or suspected terrorists come into our country illegally, and we know that our most vulnerable point of entry is southern border.” Wallace, however, pointed out that those individuals were caught at airports, not the southern border.

Misleading characterizations of the situations like that are what Bauer claims could hurt Trump if he has to defend use of the National Emergencies Act of 1976 in court. Democrats are not the only ones who see such a scenario as likely.

Notable Trump supporter Sean Hannity pointed this out on the radio on Monday.

“I’m guessing he’s going to declare a national emergency,” Hannity predicted, adding, “In this case, I think the president would be wide open to a court challenge.”

Sen. John Cornyn (R-Texas) told CNN that while he believes Trump has the power to use the National Emergencies Act, he expects that doing so would result in “court hearings and litigation that may carry this on for weeks and months and years.”

During that time, however, Trump could potentially agree to back off on border-related demands that led to the current government shutdown, if he is confident that he’ll end up getting the resources he needs through the National Emergencies Act.

[Image via NICHOLAS KAMM/AFP/Getty Images]

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