Donald Trump’s presidency has ushered in unique challenges to the judiciary’s job of ensuring the rule of law guides judges’ decision-making. According to Newsweek, at least 60 lawsuits have been filed against President Trump since his inauguration, and there is no sign this trend is abating. Indeed, it will likely accelerate.
As these lawsuits continue to pile up, courts will be put the test. Will President Trump and his businesses be treated the same as any other litigant or business? Or will courts treat him differently because of who he is and what he is perceived to stand for?
So far, most of the lawsuits concern the president’s policies and executive orders. We should expect legal challenges to controversial issues such as U.S. immigration policy, and there are sure to be even more challenges in the pipeline.
But a new breed of lawsuit was born last week in the local court in Washington DC. The lawsuit from Cork Wine Bar is not like challenges to Trump’s policies because of its brazen demand: the president must divest himself of any interest in the Trump International Hotel in Washington DC, or otherwise resign from the presidency.
Putting aside the head-snapping idea that a DC judge (or any judge for that matter) has the power to order the president of the United States to resign, the lawsuit is very strange. Business at the Cork supposedly has tapered off since Trump became president. Its owners apparently believe this was caused by (a) Trump becoming president and (b) a Trump Organization hotel being located less than two miles away from Cork. So the owners sued, not only the company that leases the space (in effect, the Trump Organization), but also President Trump himself.
This Is Lawfare, Plain and Simple
The lawsuit is troubling in several respects, not the least of which are the obvious political motivations behind it. A court is supposed to redress injuries recognized in the law. It is not a forum for political stunts with political goals that have no basis in law or in fact. Yet, a recent New York Times editorial appears to encourage lawsuits of this very kind, stating that such “[l]itigation could force [President Trump] to provide more information about his businesses and finances, including his tax returns.”
Political stunts in a court of law test the court’s role as a neutral arbiter more than any other type of case. Like the rest of us, judges are human beings with smartphones, access to social media, news feeds, and political philosophies and passions. Judges, therefore, should take special care when deciding claims such as those that Cork now makes.
To be sure, one of the owners of Cork publicly insists his case is not political but rather a “business case.” He hopes other DC restaurants will join him in his fight against Trump. However, the Cork owner’s attempted justification doesn’t square with the political theatre that surrounds this lawsuit. “Business cases” are not announced at the National Press Club with a room full of reporters—which is exactly how and why the Cork case was picked up by every major media organization and is now the subject of political and legal discourse.
Cork Can’t Even Show Direct Harm
On its face, the Cork lawsuit appears to betray itself. It seeks a remedy that no court is likely to order. In addition to asking that President Trump resign or otherwise divest himself of all interests in the hotel and restaurants, Cork wants a court to shut the place down until Trump leaves office. It is highly doubtful that a judge will close a business and put hundreds of people out of work when Cork can’t even identify a single customer who left Cork for Trump International because of supposed “unfair” competition.
Quite the opposite, the law encourages competition and declares as “unfair” only conduct that is very extreme, such as: disparaging a competitor’s goods or business methods, intimidating customers or employees, interference with access to the business, threats of groundless suits, commercial bribery, inducing employees to sabotage, or false advertising. None of this is at play in the Cork case.
Cork says the “unfair” competition consists of violating the hotel lease. That, too, is a head-scratcher. Cork is not a party to the lease. To state the obvious, a lease is contract between a tenant (the Trump business entity) and a landlord (the GSA). Basic contract law says that, unless the parties to a lease clearly say so in the lease itself, outside parties cannot benefit from it and have no standing to stick their noses in and attempt to disrupt a commercial relationship. It appears that Cork is asking a DC local court to declare that the Trump Organization breached the lease before the landlord—the GSA—even takes a position on the matter.
Finally, naming President Trump himself as a party to the lawsuit also is puzzling. There is no statement in the Cork lawsuit that suggests Trump participated in or directed acts of “unfair competition.” He seems to be sued simply because he is the president and may have an interest in the hotel. That doesn’t square with the law either, and it could set a wrong-headed precedent that goes against years of settled decisions from the DC courts.
Presidents Should Be Free to Make Their Own Money
The presidency was never intended to be occupied only by career politicians or members of political dynasties. Businesspersons with significant assets can be president just like any other natural-born, 35-year-old citizen. The rules should not be changed just because a businessman occupies the Oval Office.
An umpire would (or should) throw Cork’s case out. Like it or not, the rule of law demands that President Trump and his organization be treated like all others that are similarly situated. That’s what we should all expect. This principle has served us well for a very long time, and the anti-Trump hysteria is no reason to cook up a new recipe for deciding cases involving sitting presidents.
Allowing the Cork case to proceed may actually harm our legal system. It would be perceived as elevating the political passions of the day over long-standing rules that tell us what a meritorious lawsuit is and how it should be handled.
In the end, perhaps Cork will get what it wishes for, and press ahead with a lawsuit against President Trump and his organization. But Cork should expect a hefty and public counterpunch in the form of a claim that Cork’s lawsuit is an abuse of the DC court system. Now that’s bad for business.