Trump notches court wins by running out clock on lawsuits
Former President TrumpDonald TrumpPalm Beach reviewing Trump’s residency at Mar-a-Lago Immigration reform can’t wait On The Money: Five questions about the GameStop controversy | Biden, Yellen call for swift action on new aid MORE left office as numerous lawsuits against him and his administration still hung in the balance, a result that legal experts say was part of a calculated strategy to run out the clock and avoid accountability while in the White House.
By dragging his feet in court, Trump evaded subpoenas for his tax returns and dodged a final ruling on whether his continued business dealings violated the Constitution’s ban on profiting off the presidency.
His administration also upended the legal process, experts say, by treating emergency requests to the Supreme Court as a standard litigation move, often with success.
“The administration foot-dragged and played the courts in very different ways in these cases,” said Steven Schwinn, a law professor at the University of Illinois at Chicago. “But the bottom line was always the same: drag these disputes out in court and effectively achieve their policy goals.”
Some legal actions focused on Trump, like efforts to obtain his tax returns, are expected to continue post-presidency. But experts say that while he was in office, Trump’s drain-the-clock strategy allowed him to avoid accountability and carry out policies before their lawfulness was ultimately resolved, leaving key questions about executive power unanswered as President Biden took office Jan. 20.
“The goal was to stretch this out until after the election,” said Norm Ornstein, a scholar at the center-right American Enterprise Institute.
Shortly after Trump’s presidency ended, so too did a pair of lawsuits claiming he used the Oval Office to enrich himself. Those disputes dealt with the Constitution’s Emoluments Clause, which bars federal officeholders from accepting certain gifts and payments to safeguard against undue influence.
On Monday, five days after Trump’s departure, the Supreme Court dismissed a pair of emoluments cases against him, ruling that the lawsuits were moot now that Trump is a private citizen.
One of the litigants, the government watchdog group Citizens for Responsibility and Ethics in Washington, had filed the suit during Trump’s first week in office. The group’s president, Noah Bookbinder, said the dismissal of the case reflected Trump’s “concerted strategy of using delay and obstructive tactics.”
“While going to court and taking advantage of available procedures can be appropriate,” he said, “the Trump administration’s moves seemed calculated to run out the clock so his abuses would not be addressed while he was president. It was a cynical and damaging strategy.”
A spokesperson for Trump did not respond to a request for comment.
Mark Tushnet, a Harvard Law professor, said Trump’s approach worked in part due to some of the legal vulnerabilities in these cases. Embedded in the emoluments disputes, for instance, were thorny questions about who had a legal right to sue.
“Sometimes the claims about Trump’s actions had some weak spots,” Tushnet said. “Maybe not enough to lead to an inevitable defeat for Trump, but enough to take up time in litigating.”
A separate case, which ping-ponged between the lower and upper courts, concerned a New York grand jury subpoena for Trump’s tax returns.
Manhattan District Attorney Cyrus Vance obtained the August 2019 subpoena as part of a criminal probe into hush money that Trump allegedly paid to two former mistresses ahead of the 2016 election. Vance is also believed to be investigating possible financial crimes by the Trump Organization.
Trump responded to the subpoena against his accounting firm, Mazars USA, by filing a lawsuit in a New York federal court. When he lost there, he appealed to the Second Circuit Court of Appeals. He lost again and appealed to the Supreme Court.
The justices last year ruled 7-2 against Trump, rejecting his claim that presidents have total immunity from the criminal process. But they left Trump wiggle room, saying he could lodge additional legal objections in lower court proceedings.
Trump did exactly that. Once again, he lost in the district court and the Second Circuit before turning to the Supreme Court.
By the time Trump left office, an emergency request was pending from Trump to the justices asking them to shield his financial records. The court has yet to act on the application, which was filed in October.
Trump could not have succeeded in running out the clock without judges who were willing to let the disputes drag on, said Tushnet.
“Any litigant, not just Trump, can file motions and the like with the intent to slow the pace of litigation down,” he said. “But they can succeed only if the courts are willing to go along.”
When lower courts handled Trump-related suits, they often responded in kind to signaling from the Supreme Court that “the very fact that the presidency was involved should make them careful and deliberate in their actions.”
The justices were also largely acquiescent in the face of Trump’s record number of emergency requests.
Before Trump took office, it was rare for presidents to ask the Supreme Court for an emergency stay of a lower court ruling, which has the effect of allowing a federal policy to go forward while a legal challenge plays out. But Trump treated these requests as a standard litigation tactic.
The combined administrations of former Presidents George W. Bush and Obama made just eight such requests over 16 years, with only four requests being granted, according to University of Texas law professor Steve Vladeck.
In Trump’s first three years in office, his Justice Department asked for 29 emergency stays. In response, the court granted relief 17 times, Vladeck wrote in a June opinion piece for The New York Times.
“It was a partial stay from the Supreme Court that allowed President Trump to put much of his travel ban into effect until the policy was revised in late 2017,” Vladeck wrote. “A stay from the Supreme Court allowed the president to divert military construction funds to help build his border wall.”
A number of stays were still in effect when Trump’s term ended Jan. 20, meaning a final ruling is unlikely to ever be reached in the underlying cases.
Tushnet said it was difficult to predict whether Trump’s litigation strategy would be emulated by other presidents.
“Litigators know that slow-walking things is always possible,” he said. “Whether other presidents try the same tactics will depend upon their sense of political and personal responsibility.”
Published at Sat, 30 Jan 2021 11:00:08 +0000