The Litigious President

Alright, let’s face it. We live in America in the Twenty-First Century, where and when litigation is a significant aspect of our lives, our liberty, our property and, for many, the pursuit of happiness. Litigation is an integral part of our culture. And by the time that most individuals in the United States have reached middle age, they have been involved in some sort of litigation; e.g., unemployment compensation, worker’s compensation, contract disputes, estate administration, business transactions, divorce and domestic relations, collections, creditor debtor, bankruptcy and insolvency, real estate, taxation, criminal, torts, etc. And this is particularly true for persons engaged in business, especially entrepreneurs and real estate tycoons and moguls.

Donald J. Trump (“Mr. Trump”) is no exception. But to say that the former president is litigious may, by some observers, be considered to be an understatement (perhaps the one of the year or even the century).

Throughout his adult life and up until he assumed the Presidency, Mr. Trump has had involvement in about 3,500 cases in federal and state courts and United States Bankruptcy Court.1 And since 2016, there have been a myriad of others2, including (but not limited to) his 2020 election challenges and the January 6, 2021 insurrection.

Most recently,3 in Trump vs. United States of America, the United States Court of Appeals for the Eleventh Circuit4 reversed the District Court, the latter of which had ruled unequivocably in favor of Mr. Trump on virtually all of the issues which had been presented to that court. Mr. Trump had brought suit against the Government in the United States District Court for the Southern District of Florida.5 On Plaintiff’s Motion For Judicial Oversight and Additional Relief, the District Court held that it had jurisdiction (albeit equitable) to enjoin the United States from using otherwise lawfully seized records it received from Mr. Trump’s Mar-a-Lago residence. In so doing, the district judge stated, in relevant part: “Pursuant to the Court’s equitable jurisdiction and its inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the circumstances presented [emphasis mine], Plaintiff’s Motion is GRANTED . . .” Order, Opinion, 1.

The district judge further ordered the appointment of a special master to review the property seized pursuant to the search warrant. The District Court so stated: “. . . [In] natural conjunction with that appointment . . . the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.” Id.

The Court of Appeals reversed the District Court in its entirety. The Court framed the question presented quite narrowly, as if it were an appellate brief: “This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no.” Trump, CA 11th Cir., 2. In its per curiam opinion, the Court of Appeals delved into a thorough analysis as to why the District Court did not have jurisdiction. Referring to the issues that were before the District Court, the Court of Appeals initially took notice that “[these] disputes ignore one fundamental question – whether the district court had the power to hear the case: After all: ‘Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree [citation omitted].’” Id. The Court proceeded with its discussion as to when a federal court can, under “exceptional” and “anomalous” circumstances, exercise equitable jurisdiction. The Court applied the four-prong test of its precedential case, Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975), which detailed if and when a federal court has equitable jurisdiction; the Court determined that Mr. Trump’s jurisdictional arguments failed on all of the four “factors”. Id., 3. After a thorough recitation of the history of the case sub judice (both factually and procedurally), the Court went forward with its reasoning and arrived at its conclusion that: “ . . . the district court lacked jurisdiction to consider plaintiff’s initial motion or to issue any orders in response to it.” Id.,10; discussion, 10-20.

In its conclusion, the Court of Appeals held that the District Court improperly exercised equitable jurisdiction; vacated the lower court’s order; and remanded with instructions for the District Court to dismiss the case in toto. It is interesting to note that the Court of Appeals, in the penultimate to its Final Order, stated that: “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.” Id., Opinion, 20-21. I suggest that you (whoever and wherever you are, if you are anybody and/or anywhere) read both the opinion of the District Court and that of the Court of Appeals. The opinions, combined, are equal to an introductory chapter in a textbook on federal jurisdiction. And the Eleventh Circuit Court of Appeals, in its per curiam opinion, all but scolds the trial judge (United States District Judge Aileen M. Cannon), the plaintiff (Mr. Trump) and the latter’s legal team. As of this writing, no cert. petition, or other form of appeal, has been lodged. Nor, to my knowledge, have any other lawsuits (frivolous or otherwise) by or against the former president been commenced. But is there more litigation to come? Well, we shall “wait-and-see,” as we are, for all intents and purposes, in a wait-and-see jurisdiction (as in the rule against perpetuities). At least for now, however, former President Trump is at liberty to lead a life of blissful fulfillment.

5 Donald J. Trump v. United States of America, U.S.D.C. Southern District of Florida, 22cv-81294-AMC. This was a far cry from Mr. Trump’s first legal encounter with the Government. In 1988, the United States District Court for the District of Columbia entered judgment in favor of the United States and against Mr. Trump, and ordered the latter to pay a civil penalty in the amount of $750,000 pursuant to Section 7A(g)(1) of the Clayton Act. United States of America v. Donald J. Trump, Civ. Action 88-0020, U.S.D.C., D. Columbia, 12 April, 1988.