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What Trump’s Legal Battles Tell Us About Presidential Power

While he loudly calls the media’s attention to issues like immigration and trade agreements, President Trump is quietly testing the limits of his authority through the courts. His views of executive power and separation of powers are, in dozens of different cases, forcing the legal system to answer knotty — and sometimes unprecedented — questions about what the U.S. president is really allowed to do.

It’s not uncommon, of course, for presidents to push at the boundaries of the presidency and for the courts to rein them in. But Trump stands out for both the range and breadth of the constitutional questions that have been raised during his presidency, which isn’t yet 2 years old — from his attorney’s claim that a president can never obstruct justice to his declaring that he has the right to pardon himself. To be clear, neither of those legal questions is being considered by courts at the moment (although if Trump tries to pardon himself, I can promise that will go before a judge in record time), but there are plenty of other consequential cases currently working their way through the judicial system. Disputes about the scope of presidential authority are never easy for judges to resolve, but Trump’s unorthodox statements and actions are making it even more difficult for the courts to determine when, and how, to place limits on the president.

Whether the courts reject Trump’s actions or allow them, the results of these cases will leave their mark on our country long after this administration is over, because they’ll be enshrined in law. So far, the nation’s highest court has upheld a policy restricting travel to the U.S. by people from several nations, some of which are majority-Muslim — still one of Trump’s most controversial actions. Others seem likely to end up at the Supreme Court; indeed, one aspect of the legal fight over the addition of a citizenship question to the 2020 census will go before the court in February. Although many lower courts have been skeptical of the legality of some of Trump’s actions, Trump and the Republican Senate are remaking the federal judiciary through a record-setting series of conservative judicial appointments, which could have implications for how similar cases are received in the future.

That’s why we’re launching The Trump Docket, a column that will explore some of the most important legal cases of the Trump presidency and how their results could shape the contours of presidential power for years to come.

To do this, I’ve assembled an initial set of cases to track and investigate and divided them into three categories (Pre-presidency Trump, President Trump and the Trump administration) based on the nature of their connection to the president. The list is far from exhaustive, and the choices I’ve made are admittedly subjective, although I’ve consulted more than a dozen legal experts and political scientists along the way. I’ll add and subtract cases as they arise or are resolved, but my aim overall is to isolate a group of legal challenges that illuminate the range of Trump-related issues that are currently in the courts. And every week or two, I’ll dive into what a particular case or set of cases means — for Trump personally, his presidency and our democracy.1 For today’s column, I’m going to walk through some of the major cases in each category and outline their stakes.

Pre-presidency Trump

Trump was elected with several dozen active lawsuits against him, so it’s not surprising that he’s still battling cases that involve conduct from before he was president. But several are now forcing courts to grapple with how our justice system should treat a president who is being sued. And the ongoing special counsel investigation into whether the Trump campaign coordinated with Russia to influence the 2016 presidential election has raised the specter of whether the chief executive can be criminally indicted. In this category, I’ll follow cases involving conduct from Trump’s pre-presidency days (even if the lawsuit or charges were filed after Trump became president), including:

  • A lawsuit filed by former “Apprentice” contestant Summer Zervos, who is accusing Trump of defamation for calling her a liar after she said he had sexually harassed her.
  • Adult film actress Stormy Daniels’s dispute with Trump over a hush-money deal she signed during the 2016 election campaign.
  • New York state’s lawsuit against the Trump Foundation — which Trump announced after the 2016 election that he would dissolve, saying that he wanted to avoid conflicts of interest — that argues the Trump family’s charitable organization repeatedly violated both state and federal laws.

President Trump

Trump’s unwillingness to divest from his businesses after he became president and his aggressive Twitter presence haven’t just raised eyebrows — they quickly spurred legal action. In this category, I’ll be looking at cases related to Trump’s conduct as president that have raised questions about limits on a president’s personal behavior and how much power the courts have to rein him in. These cases include:

  • Three separate lawsuits that claim Trump’s business ties are in violation of anti-corruption clauses in the Constitution that prohibit federal officials from receiving domestic and foreign “emoluments,” or financial benefits, without congressional approval. Cases have been brought by Democrats in Congress, a watchdog group and concerned private citizens, and the attorneys general of Maryland and Washington, D.C.
  • A case brought by people who have been blocked by Trump on Twitter and claim that the president is violating their First Amendment rights.
  • A lawsuit from a professional writers organization that claims Trump is using his office to punish members of the media whom he dislikes and is asking the courts to stop him.

The Trump administration

This category is both the biggest and the trickiest to define. That’s because every administration is constantly engaged in court battles over the way they’re interpreting laws and regulations, but those fights don’t often revolve around constitutional issues. We also wanted to focus on the policies that press at the boundaries of the president’s power, relative to the other branches of government — as well as disputes that we might not expect to see in another administration. These cases include:

  • The multiple, ongoing legal battles over whether the executive branch can withhold funding from so-called sanctuary cities, which are places that have instituted policies limiting local cooperation with federal immigration authorities.
  • A challenge from a lobbying group that represents steel traders, who claim that Trump overstepped his constitutional bounds by imposing tariffs on imported steel and aluminum.
  • Lawsuits attacking the Trump administration’s revocation of “temporary protected status” — a designation that shields migrants from deportation if they’re from certain countries experiencing natural disasters or conflict — for immigrants from El Salvador, Haiti, Nicaragua and Sudan; they say that the president was motivated by racially discriminatory views against people from these countries.
  • The fight over whether the Trump administration’s plan to exclude transgender people from the military is constitutional.

You can see — and follow — the full set of cases here. I’ll periodically update the data set with the latest on each case, and I’ll post new and interesting information on Twitter. And don’t hesitate to reach out if you think an important case is missing or if there’s an interesting angle on one of these cases you’d like us to explore. We want this column to answer your questions about how Trump is changing the presidency, so please be in touch.

CORRECTION (Nov. 26, 2018, 5:10 p.m.): An earlier version of this article incorrectly said that the Trump Foundation had been dissolved. The conditions of its dissolution are still being litigated.

Footnotes

  1. Any case that doesn’t directly name Trump is closely linked to one of his policies. I’ve also included several cases that are part of special counsel Robert Mueller’s investigation into possible coordination between the 2016 Trump campaign and Russia, as well as the case involving Michael Cohen, the president’s former lawyer and fixer who pleaded guilty to tax evasion and campaign finance violations this year and may, in the process, have implicated the president in a crime.

Amelia Thomson-DeVeaux is a writer and reporter living in Chicago.

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