Trump vs the rest

US Supreme Court – photo by Freeimages.com

President-elect Donald Trump is taking the oath of inauguration tomorrow (our time) burdened by a legacy of some 75 unresolved civil court cases. Trump or his businesses are involved in these cases, all at varying stages, with Trump as plaintiff or defendant. This would normally be business as usual for Trump, but for the fact that he is the President-elect.

Exhaustive research by US Today shows Trump and his businesses have been involved in more than 4,000 civil cases over the past three decades. They include branding and trademark cases, contract disputes, employment cases, personal defamation suits and about 190 government and tax cases. About half of the civil suits involve Trump’s casino businesses and a large number involve his real estate businesses.

US Today set a team of reporters and researchers on a monumental, ongoing task of tracing the litigious President-elect’s track record.

Of immediate concern are the 75 open cases in the background as Donald John Trump prepares to take office as US Commander-in-Chief.

The type of civil action which can prove difficult for an incoming President or Prime Minister is defamation. Some consider it unsporting for the leader of a country to sue someone (usually a media organisation) for defamation. As the number one public figure in a democracy, you’re supposed to roll with the punches.

This may not be the case with Donald Trump. During his presidential campaign, he threatened to sue all the women who accused him of unwanted sexual advances and also said he would sue media outlets who reported the claims. (By extension this ought to be worrisome to anyone who re-posted related remarks on Facebook or Twitter).

US Today say that although Donald Trump has frequently threatened to sue for defamation, he rarely follows through and has won only one of 14 cases since 1976.

It may well have been the case if he had not won the presidency that Trump would have pursued the women he called ‘liars’. However, it would seem a bridge too far to expect a brand-new President to deal with such distractions, which, if pursued to trial, could result in (President) Trump being called to give testimony under oath. So as his presidency begins, can we expect to see more civil cases being dropped or settled?

The BBC reported that Mr Trump faced three fraud cases related to Trump University, which closed in 2010. The first case, brought by students who claim they were deceived by Trump University’s marketing, was to have been heard 20 days after the election.

Although repeatedly saying during his campaign that he would “never settle”, in November Trump closed all three cases in a $25 million private settlement.

The issue of Trump and his legal legacy has not been greatly pursued by the media, but it is an immediate impediment and distraction to his getting on with making America great again.

The President-elect will no doubt make his own mind up whether he can afford to be distracted by these 75 legal challenges, carried over from his volatile business life and the long campaign to establish himself as a presidential contender. None of these cases can be ignored. As plaintiff he must either pursue his claim or withdraw. As defendant, he must defend or offer to settle. In just one example cited by the BBC, Trump is being sued by Republican political consultant Cheryl Jacobus. She filed a $4 million libel lawsuit claiming he “destroyed her career” by calling her a derogatory name on Twitter.

John Dean, former legal advisor to Richard Nixon, analysed similar outcomes for four other Presidents in a Newsweek article. Theodore Roosevelt, Harry Truman, John F. Kennedy and Bill Clinton all carried civil suits into the Oval Office. Most of these cases were quickly disposed of; however Bill Clinton was not so fortunate. Clinton vs Jones went all the way to the US Supreme court, which held that a US president is not immune from civil litigation involving matters occurring before he took office. If you had forgotten or were curious, searching Clinton vs Jones will take you on a journey.

I’ve been pursued by one or two lawyers whose clients claimed I had defamed them (in my newspaper reporting days). Typically, a news outlet can make a claim for defamation go away by printing or broadcasting an apology. Since most cases of libel amount to mistakes (the mistake occurred in the production process), apologising seems the sensible option.

Or the publisher can get on his high horse and defend the charges, which can, as you may have noticed, cost millions and go on for years.

It is often the case for those mounting a defamation case, here or in the US, that the length of time it takes to come to trial and the extent of legal costs increasingly encourages the aggrieved person to settle for an apology and (sometimes) an undisclosed amount.

I worry about people who make heated comments online about politicians. There’s no doubt the people they are castigating deserve a level of criticism. But it has to be defensible.

There have already been cases in Australia where people were sued for defamation over Facebook posts with some payouts approaching six figures. So next time you’re set to post about the neighbour’s barking dogs or the idiots who party till five in the morning every day of the week, take a break, go for a walk, calm down.

Meanwhile, here’s a bit of evidence that politicians may not always be prepared to take the flak that comes with being a public figure, Crikey has compiled a list of politicians who have sued Australian media outlets for defamation. It’s a long list.

As for Donald Trump and his ongoing civil litigation caseload, the length of time it takes for a case to come to trial may be one factor influencing decisions to settle. The average time (in America) from complaint to trial is 22 months and all that time the legal system’s meters are running. According to California Labour and Law’s Eugene Lee, a US Bureau of Justice Statistics national survey revealed that only 3.5% of disputes were resolved by trial. Most are resolved by settlement.

Columnist Sadhbh Walshe writing in The Guardian claims America’s ‘litigious society’ is a myth. He cites data that shows only 10% of injured Americans ever file a claim for compensation and only 2% file lawsuits.

“So we’re really not all that litigious, yet we continue to be treated with kid gloves as though all it will take is a scraped knee for us to be on the phone to our lawyers.”

This will be no comfort at all to incoming President Trump, whose net worth of $3.7 billion makes him an obvious target. US Today also looked into presidential candidate Hillary Clinton’s exposure to the courts. They found her named in 900 actions, most as defendant. More than a third of these claims were lodged by federal prisoners, activists and other citizens seeking redress from government.

The ‘pick a big target’ tactic seems at odds with the argument that the ‘litigious society’ is a myth. What do you reckon?