(Editor's note: This column was published before Donald Trump agreed Friday to settle the Trump University lawsuits for $25 million.)
Donald Trump will enter his presidency with an unprecedented number of civil lawsuits, which cannot be set aside or delayed simply by virtue of being President of the United States. While this situation is not totally unique to Trump, the number and nature of lawsuits involved for him is going to create real problems. To understand Trump’s situation, some perspective can be found by first looking at litigation involving other presidents-elect and presidents.
Prior Presidents Involved in Civil Litigation
Four presidents have been forced to deal with civil lawsuits which they carried into the Oval Office: Theodore Roosevelt, Harry Truman, John Kennedy and Bill Clinton. For three of them, the lawsuits were quickly disposed of, but for Bill Clinton, his lawsuit nearly cost him his presidency. Let’s look at each.
Theodore Roosevelt: Before becoming vice president (which would result in his becoming president some six months later when President William McKinley was assassinated in September, 1901) Theodore Roosevelt was sued as chairman of the New York City Police Department by John Hurley, a disgruntled patrolman, who had been dismissed. Hurley lost but continued appealing the case, which was not finally disposed of until Roosevelt was serving as president in 1904. (See Hurley v. Roosevelt, 71 N.E. 1137 (N.Y. 1904), the case was dismissed without an opinion.)
Harry Truman: In 1931, while Harry Truman was serving as a judge in Jackson County, Missouri, he and other judges ruled that Roy DeVault, an attorney, was insane, and they had him committed to an insane asylum. Believing he had been improperly committed, DeVault filed an action against then-U.S. Senator Harry Truman in 1944, just as the latter was elected vice president alongside Franklin Roosevelt. The trial court granted Truman’s motion to dismiss, and DeVault appealed. With the President Roosevelt’s death in April 1945, Truman became President. One year later, the Supreme Court of Missouri affirmed the dismissal. (See DeVault v. Truman, 194 S.W.2d 29 (Mo. 1946).)
John Kennedy: During the 1960 presidential campaign an automobile accident in California resulted in two companion lawsuits being filed in late October 1960 against candidate John F. Kennedy. After he assumed office his lawyers argued for a stay, based on his status as Commander in Chief, but the request was denied without a written opinion and the cases were settled out of court. (See complaints in Bailey v. Kennedy, No. 757200, and Hills v. Kennedy, No. 757201, filed October 27, 1960 in California Superior Court.)
Bill Clinton: In May 1991 Paula Jones, who worked for the State of Arkansas, was acting as a receptionist at a conference being held at a Little Rock hotel. She later claimed that while on this assignment a security guard for Arkansas Governor Bill Clinton informed her the governor would like to see her in his suite, where she was ushered. Upon arriving, she claimed Governor Clinton dropped his pants and requested a sexual favor. Years later she hired a lawyer, who offered to settle with then-President Clinton, and when he refused she filed a lawsuit in May 1994. President Clinton responded by requesting the court delay the lawsuit until his term in office as president had ended, seeking temporary immunity.
Clinton vs. Jones went all the way to the U.S. Supreme Court, which unanimously (9-0) held in May 1997 that a sitting president has no immunity from civil litigation involving actions undertaken before entering office. Thus, discovery depositions in the case went forward, and soon the Jones case became intertwined with the president’s affair with White House intern Monica Lewinsky, as well as the ongoing investigations of Independent Counsel Kenneth Starr. Starr would later inform Congress that there was substantial evidence that President Clinton had lied during his deposition, and attempted to obstruct justice, in the Jones case, for which he should be impeached and removed from office. The House of Representatives agreed, but the Senate did not have sufficient votes to convict and remove the President.
Potential Consequences for President-elect Trump
Unlike any of his predecessors, President-elect Trump has “at least 75” open lawsuits, according to a nationwide study by USA Today. Just before his election on November 8, Trump threatened to sue all the women who claimed to have been sexually molested by him (some 12 women at last count), and several of them threatened to sue him for defamation for calling them all liars. In addition, as his campaign was winding down, several vendors whom he had used during the campaign, claimed they were confronted with his standard business practice of refusing to pay, so several of these people may soon file actions against him, if they are not paid. So, Donald Trump could enter the presidency with as many as one hundred active civil lawsuits, which will have potentially differing and multiple detrimental impacts on his presidency.
Either as a plaintiff or defendant, and Trump is on both sides, in any lawsuit requires time and effort to prepare oneself and one’s attorneys. It takes time and effort to testify at a deposition or during a trial. And it takes time and effort to stay abreast of the lawsuit. Given the fact that Trump may be the least qualified person to ever be elected president, he has much more work to do than most who seek and reach this high office. He does not even have a good newspaper knowledge of the way Washington works, let alone the presidency. It appears he has never read even a single biography of any of the men who preceded him as president, so he has a very steep learning curve. Throughout the campaign there have been reports that he has a very short attention span. Bottom line: His litigation is going to make it much more difficult, if not impossible, to meet his responsibilities as president. The smart move would be to settle these cases, but he may not have the money to do so. And he may be financially stretched to pursue them as well.
To have a good legal team costs a lot of money. Given the fact Trump has refused to make public his tax returns, and little is known about his business affairs, it is unclear whether he is anywhere near as wealthy as he purports to be. As president-elect or president, he could, of course, create more conflicts of interest than he already is hiding by borrowing money to cover the costs of all this litigation. Probably Russia or China would be delighted to loan President Trump a few billion, but it might not be so good for the United States. One thing he cannot do is use government lawyers for his private lawsuits, so taxpayers are not going to help him out.
Finally, Trump has a solid reputation as a liar. For example, The Washington Post ran a story during the campaign about how in a 2007 lawsuit deposition he was caught in some 30 lies. Also during the campaign, Newsweek reported on his lie after lie after lie. Trump clearly outpaced his opponents during the campaign with his untruthfulness. But lying as president-elect or president is playing in a very different league.
No man in modern history has assumed the presidency with greater disapproval ratings than Trump. About half of the country despises him, and while he may be given a brief honeymoon in his new job, those who do not like this president will be looking for all the ways possible to do him in, and Democrats would love to do to Trump as Republicans did to Clinton—find a way to impeach and remove him. All the ligation following Trump into his presidency is pure grist for those who want him out of office. Trump can no longer play the fast and loose businessman to win or wiggle out of his lawsuits. While under oath in any of his lawsuits, he must understand that perjury, which is also considered obstruction of justice, will give his political enemies the same case that was made against Clinton.
His first test is fast approaching.
Trump’s First Litigation Test Is Fast Approaching: Trump University
The Trump University litigation, filed by former students throughout the country, began over six years ago, and long before Trump launched his presidential bid. It now appears these actions will go to trial on November 28, 2016, in the San Diego courtroom of U.S. District Court Judge Gonzalo Curiel. This is the judge, it will be recalled, Trump attacked as a “Mexican” who could not give him a fair trial because Trump wants to build a wall on the southern border. In fact, Judge Curiel was born in Indiana.
As I write, Judge Curiel is hearing arguments on the final pre-trial motions, deciding on what evidence he will or will not admit during the trial, as well as potential jury instructions for this high-profile case. Yesterday, November 10, the judge issued several tentative rulings, which included rejecting the blanket efforts by Trump to prevent matters that arose during his presidential race from entering the trial.
If Trump were half as wealthy as he pretends, he would settle this case. Indeed, Judge Curiel encouraged such action during the proceedings on November 10th, sending counsel to Judge Jeffery Miller when Trump’s attorneys indicated an interest in discussing settlement. It is going to cost him millions in legal fees for what is expected to be about a six-week trial. It is going to cost him even more if he loses, and if this was not a solid case it would not be going to trial. As I wrote in an earlier column, this case could be financially fatal for Trump, which may be why he is not settling. At this point settlement would be the smart choice, and would show that he cared about his new job.
There is another reason to settle now that he is president-elect because it has another consequence. The core charge of this case is that Donald Trump committed criminal fraud, and on a grand scale involving thousands of people. While candidate Trump was shameless, a guilty verdict of fraud and racketeering involving the financial fleecing of people who could not afford it, could lead to his impeachment, particularly if he so foolish as to lie and obstruct justice.
We are about to learn more about the next President of the United States, including how long his presidency may last.