Trump's lawyers found an obscure rule that may stop a lawsuit temporarily, slow down ones already filed, or create a barrier to new ones being filed.
CNN's Katelyn Polantz reported:
"There are steps the White House is taking to try and chill lawsuits. We saw last night a memo to agencies where where they are going to invoke this rule that basically no one uses in federal court, (and) the Justice Department will be able to ask judges to require people who sue the administration for emergency relief to put up money."
It's a procedural rule requiring plaintiffs to post money at the start of a court case to cover costs and damages if the government wins the case.
The White House memo criticized the lawsuits filed against it as partisan driven efforts that are frivolous, undermining democratic efforts, and exploiting courts where there may be sympathetic judges.
The White House is accusing plaintiffs of judge shopping, just like the Republicans do.
Trump is now starting to lose in the start of cases, with temporary restraining orders being granted because the government's actions are clearly illegal and the plaintiff's suit would win on merit right up front.
One federal judge, on Thursday, for instance, decided the Trump Administration "put itself above Congress" unlawfully when it categorically froze federal grants towards states' health care programs, and to highway, electric grid, broadband and clean water Improvement projects.
Part of the memo read:
Taxpayers are not only forced to cover the costs of their antics when funding and hiring decisions are enjoined, but must needlessly wait for the government policies they voted for. Moreover this situation results in the Department of Justice, the Nation's chief law enforcement agency, dedicating resources to fighting frivolous lawsuits instead of defending public safety.
They admit it. The sheer bulk of the lawsuits are beyond what the Justice Department has resources to defend.
But, the use of the rule is not automatic. A judge would have to agree to it first and set up what the amount needed to be covered would be.
"Federal courts should hold litigants accountable for their misrepresentations and ill-granted injunctions," the memo concluded.
The rule is on the books, so the Trump Administration can try to use it. Whether the tactic will work, and how well, we'll have to see. Justice lawyers would likely try to set a high amount, and a judge could set a extremely low amount or ignore the request whatsoever. Normally, this rule is almost never invoked when the case is against the government.
Mark Zaid, a Washington based lawyer who filed the suit to prevent the names of FBI agents who had worked on the Trump cases being revealed, commented:
"It's a very bold move that violates the norms. This is going to be thrown open to the courts... theoretically this could be an incredibly powerful (tool) for the Trump Administration. In this case, they actually have identified something that on its face looks to be a utility to rely upon."
The rule is part of the Federal Rules of Civil Procedure covering emergency motions for restraining orders and injunctions.
Essentially, what what the Trump administration is asking for is posting a bond. Apparently they've already been trying to use this tactic and successful in one and not in others.
Bloomberg reports that a judge who granted an injunction last month blocking the administration from withholding contracts to entities that engage in DEI, entered a bond request of zero dollars, making the government's request useless.
U.S. District Court Judge Loren AliKhan, who blocked the freeze of federal funding, said:
"In a case where the government is alleged to have unlawfully withheld trillions of dollars of previously committed funds to countless recipients, it would defy logic --- and contravene the basis of this opinion --- to hold plaintiffs hostage for the resulting harm."
In another case, a Maryland judge handling a case of Department of Government Efficiency personnel from accessing personal records at two agencies set a bond of $10,000, when the government hadn't even asked for it. U.S. District Judge Deborah Boardman didn't explain in her opinion why she had ordered it.
There's a Fact Sheet up on Whitehouse.gov that explains their take on Federal Rule(s) of Procedure 65 (C).
One section of the memo is headed: STOPPING JUDICIAL OVERREACH AND FRIVOLOUS LAWSUITS. Now that they are the target, they have a problem. When it was the Biden Administration, the Republicans said clogging up the courts was justice being done.
Another part read, "Injunctions can cause taxpayers millions or even billions of dollars, especially when they mandate continued funding."
They're crying about having to actually use the funds that Congress has allocated.
Also under the heading of:
STRENGTHENING AMERICA'S JUDICIAL SYSTEM, was this. I had to include it for it's humor value:
President Trump appointed high performing "superstar" judges according to a respected study. Trump's judges occupied 9 of the top 11 spots for productivity, and nine of the top 10 for influence.
President Trump's judges are also rated the least partisan.
I couldn't believe it when I read "superstar" judges. The "least partisan" was absolutely ridiculous.
So now we know how the Justice Department is trying to reduce their workload to their approximately 55 lawyers left in the Federal Programs Branch of the Justice Department. It may work in some cases, and be completely ignored in others.
Asking for the money up front has to be justified by the judge in question. It can't be imposed just because the government is asking for it. So, they may affect some cases, but the bulk of the cases have no damages accrued by the government. To claim that, the government has to prove their case up front.
The use of the rule could also wind up in front of the Supreme Court. It could head there if a judge imposes a ridiculous bond when there is no cause to place one. It could also be in the plaintiff's favor because the use of the rule has almost never been used in a government case.
Once again, we'll just have to wait and see how this works out in new cases. I don't think it can be imposed retroactively to cases already in front of courts. It's also possible that the government has been asking for this bond all along in all of the cases, and people just missed its use. Probably not, otherwise it wouldn't be a news story now, it would have been a news story then.
106 cases this morning, and counting. The more the merrier to clog up Trump's Justice Department to keep the administration from breaking other laws.
