Trump is by far the most litigious major party nominee in American history. In June, he was reportedly involved in at least 3,500 lawsuits over the past 30 years, including 50 that were still pending at the time.
These cases won’t go away on Inauguration Day. Instead, they’ll continue making their way through the courts and pose a major distraction for President Trump. He could find himself repeatedly subpoenaed, deposed, and called to testify about his actions.
But Trump’s position as commander-in-chief would do little to help him avoid these distractions. Two decades ago, then-President Bill Clinton tried to delay Paula Jones’ sexual harassment suit against him until after his term of office ended in January 2001. But in a unanimous 1997 decision, the Supreme Court ruled that Clinton was not protected by an executive privilege that barred all lawsuits, allowing Jones’ case to go ahead. The Clinton v. Jones ruling would apply equally to suits against Trump, both those already pending and those yet to come.
But while lawsuits are a fact of life for any administration, Trump’s lack of temperament—especially his tendency to act first and ask questions later—could make them both more likely and more contentious.
Trump might order agencies to rush through changes without proper review of evidence, leading to extended litigation. For instance, trying to revoke the Clean Power Plan would almost certainly end up before the Supreme Court, as 18 states have sided with the EPA in the ongoing case challenging the plan and won’t likely let the issue drop.
Trump is by far the most litigious major party nominee in American history.
In many of these cases, Trump might engage in outbursts attacking judges for perceived partiality, and calling the independence of the judiciary into question. He’s already repeatedly accused the judge presiding over the Trump University case, Indiana-born Gonzalo Curiel, of being biased—based solely on his Mexican heritage. Such attacks could continue after a Trump inauguration, and even extend to the Supreme Court.
Although Trump said he doesn’t think Sotomayor should have to recuse herself in immigration cases, that could easily change the moment she asks a critical question during oral arguments. And given his campaign’s flirtation with the anti-Semitic alt-right, comments about the Jewish heritage of Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan are also possible (not to mention sexist comments about Sotomayor, Ginsburg, and Kagan).
Trump could do far greater harm to the Supreme Court if another justice resigns or dies. Two members—Ginsburg and Anthony Kennedy—are over 80, while three more—Breyer, Clarence Thomas, and Samuel Alito—are over 65. Replacing either the left-leaning Ginsburg or the libertarian Kennedy (who has often voted with the court’s liberals on social issues) would mean a dramatic shift in the court’s balance of power for decades to come.
While Trump’s legal troubles might make for compelling television, they would be a disaster for America’s court system. A president who baselessly attacks judges for bias, lies with impunity even while under oath, and questions the legitimacy of democratic institutions would seriously threaten our judicial independence. Add in one or more Trump nominations to the Supreme Court, and it could be generations before we recover from the damage.
Charles Paul Hoffman writes about comics, pop culture, and the law. He enjoys talking about Michel Foucault and how culture constructs societal norms.
