Ironically, for a man who loved to bring litigation to torment opponents and squash criticism, President Donald Trump will likely face nonstop litigation for his entire term. Lawyers contesting him on everything from the emoluments clause to the lease for his Washington hotel with the federal government say, in essence, that he has no one to blame but himself. Instead of divesting entirely of his businesses, Trump chose to keep ownership.
“This will be in play for the length of the Trump presidency,” Anthony Romero, executive director of the American Civil Liberties Union, said to me in a telephone interview on Monday.
As the first significant piece of litigation against Trump — an emoluments clause action filed by Citizens for Responsibility and Ethics in Washington (CREW) — goes forward, the ACLU is busy on multiple tracks. The ACLU’s work and CREW’s litigation, Romero says, are “not at all mutually exclusive.”
CREW’s lawsuit will proceed with the group itself as the plaintiff. From the ACLU’s perspective, the ideal plaintiff would be an individual or entity that has been put at a comparative disadvantage by Trump’s alleged violation of the Constitution. A competitor who lost out on efforts to lease the Old Post Office Pavilion or wants to bid to take over the Trump International Hotel in Washington, for example, could bring an action claiming that Trump is in violation of his lease with the federal government. Such a person could also sue under the Constitution’s emoluments clause on the grounds that foreign governments, as we saw during the inauguration, are flocking to Trump’s hotel to grease the skids for their dealings with him.
Then there are foreign competitors. An American hotel chain in China, for example, that sees Trump’s properties getting preferential treatment on regulations, loans, permits and the like could sue in U.S. federal court claiming that, if it wasn’t for the emoluments clause violation, they would enjoy a level playing field.
Other potential litigation could come from parties to administrative proceedings before adjudicative bodies such as the National Labor Relations Board (for which Trump will have appointments to fill open seats). A union in one of the many cases involving Trump properties might be able to appeal an adverse decision, arguing that the NLRB decision was tainted by a conflict of interest. (Frankly, all parties before bodies such as the NLRB should raise the potential conflicts issue since the identity of Trump’s holdings — and hence the source of conflicts — are not yet known.)
One more source of litigation could come from executive branch employees, seeking declaratory judgment. If a Labor Department, Environmental Protection Agency or Commerce Department employee knows he or she is working on a matter implicating one of Trump’s holdings, the civil servant might seek a declaratory ruling from a court or at the very least an advisory opinion from the Office of Government Ethics seeking to determine whether he or she can act on the matter without running afoul of government ethics rules.
The ACLU’s first step has been to file a Freedom of Information Act request for documents between Election Day and Inauguration Day relating to Trump’s potential conflicts. In a statement released last week, the ACLU explained:
“We want to know how the Trump transition team and the government offices tasked with supervising ethics-related issues for the incoming administration have been thinking about and confronting these potential conflicts. In pursuit of that information, we’ve asked for a gamut of documents - legal opinions, policy advisories, communications, and more - that address them. And we aim to publish the responses so that the American public can do its job conducting broad-based democratic oversight of the new administration.”
The FOIA request is targeted at the period of time before the Trump administration took office, the period that is most likely to uncover candid, reasoned discussion of the conflicts. The narrow time period increases the chance for a timely response. The ACLU has used FOIA requests as a starting basis of other litigation, including legal actions relating to President George W. Bush’s use of enhanced interrogation techniques. “It’s important to remember FOIA officers are civil servants,” Romero says. “These are good people doing their jobs.” Some of the information the ACLU is seeking may turn up in the course of investigations of alleged ties between Trump associates and Russian officials.
Understand that this is just one area of concern for the ACLU and like-minded nonprofits. Trump’s ongoing treatment of the media and apparent threats implicate First Amendment concerns. During Saturday’s disastrous rant at reporters, the White House press secretary threatened to hold the press “accountable.” Romero remarked, “What does ‘hold the press accountable’ mean?” If it means suing news organizations for libel or kicking one or more outlets out of the press room because of the content of their reporting, First Amendment rights may be implicated.
In sum, Trump wants to act like no other president has ever behaved. The corollary to that means he will face litigation no other president has ever experienced. Groups such as the ACLU and CREW, as well as lawyers representing individual businesses, civil servants and parties to actions involving the government, will have a field day with this administration. At some point, House Republicans who had an insatiable appetite for investigating Hillary Clinton might actually bestir themselves to look into these issues as well.
Jennifer Rubin is a Washington Post columnist.