Written by Peter Baker
Another day, another legal battle. Or two. Or three. In one court, a longtime political ally just went on trial. In another, judges ordered his accounting firm to turn over his tax returns. In still another, a writer who claims he raped her filed a defamation lawsuit against him. In a fourth, a judge overturned an anti-abortion policy.
And that was all in the space of barely 48 hours.
Even as President Donald Trump tries to fend off the ultimate threat of impeachment for high crimes and misdemeanors, he and his team are waging simultaneous legal battles on a wide array of fronts, facing perhaps more significant challenges with more consequences to his presidency than any modern occupant of the Oval Office has confronted at one time.
It requires a scorecard just to keep track. Trump is being accused in court of exceeding his power on policy decisions and defying the law on personal matters. He is resisting efforts to force his aides to reveal the inner workings of his White House. Last month, four federal judges in four states ruled against him on a single day. And even as he relies on lawyers to fight his battles, the lawyers themselves are in trouble. One is in prison; another faces a criminal investigation.
“Trump attracts lawsuits and prosecutors like metal filings to a magnet,” said Michael Waldman, president of the Brennan Center for Justice at New York University School of Law and a former aide to President Bill Clinton.
As in all things, Trump, of course, gives as good as he gets. Always litigious in private business, he has brought his penchant for the legal process to the presidency as he regularly threatens to sue perceived adversaries, unlike most of his predecessors — although it generally results in more talk than tort, since he routinely fails to follow through.
In the past few weeks alone, his campaign sent a letter to CNN threatening to file a lawsuit against the network for falsely advertising itself as a news organization, and the president and his lawyer, Rudy Giuliani, have talked about suing Speaker Nancy Pelosi and Rep. Adam Schiff, the two California Democrats leading the impeachment drive.
“We are going after these people,” Trump said at a Values Voter Summit in Washington last month as he assailed Schiff. “These are bad, bad people. I actually told my lawyers, I said, ‘Sue him anyway.’ He’s got immunity, but they can’t mean immunity for that. I said: ‘Sue him anyway. Even if we lose, the American public will understand.’ And sue Nancy Pelosi.”
No such suits have been filed nor does it seem likely they will be. While Giuliani talks about going to court as a plaintiff’s lawyer, he needs his own defense lawyer as the federal prosecutor’s office in New York he once headed investigates his dealings in Ukraine.
The sheer volume of legal issues that have made it to court, however, has been head-spinning. Trump is fighting claims that he violated the Constitution’s emoluments clause barring self-enrichment. He is fighting to prevent his former White House counsel, Donald McGahn, from testifying to Congress. He is fighting to keep his tax returns from becoming public. He is fighting claims that he abused his power by declaring a national emergency at the border and changing immigration rules.
On Monday, E. Jean Carroll, a journalist and columnist, filed a defamation suit against him for denying her allegation that he raped her. On Tuesday, Roger Stone, the president’s friend and sometime adviser, went on trial on charges of lying to Congress to protect Trump. On Wednesday, a federal court overturned a rule Trump had announced last spring that was intended to make it easier for health care workers to object to abortion on religious or moral grounds.
As he and his White House and his business and his foundation and his inaugural committee have all found themselves under investigation, Trump has made sweeping claims about his ability to withhold documents, block testimony and avoid not just indictment while in office but even investigation.
“I have an Article II, where I have the right to do whatever I want as president,” he said over the summer, referring to the article of the Constitution outlining the powers of the nation’s chief executive, a rather tortured interpretation in the view of many legal scholars but one that may soon be tested by the Supreme Court.
Shannen Coffin, a former counsel to Vice President Dick Cheney, said that every modern White House had fought multifront legal battles, particularly on policy, recalling, as an example, the flurry of lawsuits challenging President Barack Obama’s health care law. And since President Richard Nixon, he said, it has not been uncommon for fights between the White House and Congress to spill over into the courts, recalling battles over testimony during President George W. Bush’s administration.
“Where things seem most different is that Trump is more willing than other presidents to take the fight to the opposition in court,” he said. “At least where his own interests are at stake, he is not afraid to look to the courts for relief. These suits may have political benefits for the president, but they also tend to increase the daily unpredictability in the conduct of government business.”
The last president to face impeachment also faced myriad legal battles. Long before the matter got to Congress, Clinton fought independent counsel Ken Starr in the courts on executive privilege, attorney-client privilege and even an unrecognized Secret Service privilege.
He lost many of those cases, setting precedents for Trump and other successors, and he was held in contempt of court by a federal judge for testifying falsely under oath about his relationship with Monica Lewinsky during a sexual harassment lawsuit filed by a former Arkansas state worker.
Jane Sherburne, who was a White House lawyer for Clinton, said Trump’s legal battlefield is “vastly more complicated than the legal matters we were managing” and “leaves one breathless.” While the Clinton team fought Starr, it rarely went to court to fight Congress, meaning there was a whole category of legal wrangling it did not engage in.
“We picked our battles carefully. That kept the lid on,” she said. “The chaos approach seems nuts to me but who knows? Trump keeps his base fired up in spite of it.”
The legacy will live on long after Trump has left office. Whatever rulings survive his administration will govern those that follow. “There will be a lot of new constitutional law made during this presidency,” Waldman said. “There will be new rulings on the emoluments clause, on subpoenas from state and local prosecutors, and so on. Law professors will dine out on this for a generation.”