Remarks

The Litigation Storm Around President Trump

The number of suits is less important than the importance of the issues they raise.
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Liberal activists are thrilled to be suing President Donald Trump. “The reason you’re seeing a proliferation of lawsuits against President Trump is that he brought his lifelong contempt for the rule of law with him to the Oval Office,” says Norman Eisen, the chief White House ethics lawyer for President Barack Obama.

Eisen now heads a watchdog group called Citizens for Responsibility and Ethics in Washington, which—along with Democratic members of Congress, the state of Maryland, and the District of Columbia—are suing Trump for violating the Constitution’s foreign emoluments clause. That long-dormant anti-corruption provision forbids public officials from accepting payments from foreign governments. The suits accuse Trump of profiting from private businesses such as his Washington hotel, which has been patronized by officials from Saudi Arabia, Kuwait, and other countries.

“With unusual speed, Trump has created a shooting gallery of litigation targets,” says Joshua Matz, a Washington constitutional lawyer who works closely with attorneys bringing the emoluments cases. Another big-ticket legal action for months has stymied the president’s executive order imposing a temporary ban on immigrants from six predominantly Muslim countries. (The Supreme Court on Monday said it would hear arguments in October as to whether the ban is lawful; in the interim, the justices largely allowed the restriction to go into effect.)

Yet another legal challenge has blocked a separate executive order cutting off certain federal funds from “sanctuary cities,” which refuse to have their police departments help federal authorities target immigrants for deportation. “This administration is overreaching,” says Patti Goldman, an attorney in Seattle with the group Earthjustice, which is spearheading a suit challenging a Trump order that directs federal agencies to kill two regulations for any new one they issue.

Conservatives bemoan the situation. “This is lawfare—using litigation as a tool of political warfare,” says David Rivkin, an attorney who served in the Ronald Reagan and George H.W. Bush administrations. “It depresses me.” The White House did not respond to requests for comment. 

A look at Pacer, the official database of federal cases, shows more suits filed against the president during the first five months of the Trump administration than during comparable periods of the Obama and George W. Bush administrations. But the raw numbers aren’t terribly meaningful. The vast majority of cases filed against any president are frivolous, filed by prison inmates, quickly dismissed, or all of the above. Once peripheral cases are combed out, 29 suits remain against Trump, and many of those are redundant. Multiple travel-ban challenges are pending in the lower courts, for example, even as two of the cases await review by the Supreme Court. The Trump administration has asked the justices to reinstate the restrictions, arguing that the president has extremely broad authority over all immigration matters. 

“There’s a fair bit of litigation against any president,” says Deepak Gupta, a Washington lawyer involved in the emoluments cases. “What’s different about Trump is the profoundly important legal questions this administration has raised so early in its tenure by means of executive orders.”

Obama eventually faced Republican-backed lawsuits targeting his health-reform initiative, his program to shield millions of undocumented immigrants from deportation, and his plan to limit carbon dioxide emissions from coal-fired power plants. In the wake of 9/11, Bush grappled with a wave of litigation challenging his policies on detention and interrogation of terrorism suspects. But neither Obama nor Bush had to deal with those consequential cases in their first five months. According to Pacer, Obama faced five non-frivolous suits during that early period; Bush, only one. And none of those cases raised fundamental issues about the presidency. 

A 2007 Supreme Court case in which a dozen states successfully sued the Bush administration's Environmental Protection Agency to force it to regulate greenhouse gas emissions “really opened the door for states and municipalities to sue an administration,” says Raymond Brescia, an associate professor at Albany Law School. Republican state attorneys general regularly sued the Obama administration. While a legal challenge against Obamacare wasn't successful, Obama's Clean Power Plan and immigration-reform program were thwarted by Republican state attacks. Rivkin, the conservative attorney, served as an outside counsel to both the anti-Obamacare and anti-Clean Power Plan efforts. “There is a venerable tradition of states suing the federal government,” he says. He calls the cases against Trump “more personal.”

Now Democratic-controlled state and local governments are playing prominent roles in the litigation over Trump’s immigration restrictions and sanctuary city executive orders. In California, Santa Clara County and the City of San Francisco won an April 25 federal court ruling that blocked most of Trump’s sanctuary city order. James Williams, the county's counsel, describes its suit as defending "our basic framework of government—checks and balances. We're trying to play our part here in Santa Clara." In response to its defeat, the Trump administration said it would scale back the defunding of sanctuary cities, and the judge presiding over the case has scheduled a hearing for July 12 to review the administration’s revised proposal.

If any of Trump’s legislative priorities get signed into law—Obamacare repeal-and-replace, for example, or tax reform—those could elicit yet more litigation, says Brescia. “What we’ve seen so far could be just a portent of what’s to come.”

Trump is unlikely to change direction because of hostile lawsuits. As a result of his long career in the rough-and-tumble New York real estate business, he “has far more experience as a litigant than all of the prior presidents combined,” says Jonathan Turley, a professor at George Washington University Law School. “Unlike past presidents, he is not deterred by the threat of litigation.”

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