Trump’s crackdown on frivolous lawsuits: The pot meeting the kettle.

President Trump, who has been described by one federal judge as a “mastermind of strategic abuse of the judicial process,” recently ordered his attorney general “to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States.” 

Any such review would reveal that one of the most prolifically frivolous litigants in the nation is Trump himself.  

In the last three decades, Trump has been involved in over 4,000 legal actions in federal and state courts, including a lawsuit filed against comedian Bill Maher demanding $5 million based on a joke Maher made about the color of Trump’s hair. 

More recently, Trump and his lawyer, Alina Habba, were ordered to pay almost $1 million for another lawsuit they filed against Hillary Clinton and others. In his decision sanctioning Trump and his attorney, one federal judge described Trump’s lawsuit as one “that should never have been filed, which was completely frivolous, both factually and legally, and which was brought in bad faith for an improper purpose.”  

Politicians can say whatever they like, and Trump has shown a willingness to endorse whatever unsubstantiated conspiracy theory he thinks will help him acquire more power. But when a lawyer files a lawsuit or makes an argument in court, it must be based on the facts and the law. 

Lawyers who regard loyalty to Trump over legal ethics pay a steep price. One need only look at the lawyers who pressed Trump’s false claim that the 2020 election was stolen from him. 

Rudy Giuliani, who led Trump’s efforts to overturn the election, has been disbarred and declared bankruptcy after being ordered to pay $146 million in damages in a defamation case. Lawyers John Eastman, Kenneth Chesebro, Sydney Powell and Jenna Ellis — who argued in support of the Trump campaign’s “fake electors” scheme — have all faced criminal charges and had their licenses to practice law suspended.  

Not only is Trump’s directive to root out frivolous lawsuits hypocritical, it is also unnecessary. 

Judges typically take it upon themselves to address conduct that is frivolous. It is usually obvious when a lawyer is making claims with no basis in law or fact, and by doing so, they reveal that their motive is to harass or embarrass the opposing side. 

Judges can impose financial penalties on lawyers who abuse the legal process in this way, and frivolous conduct can subject a lawyer to professional discipline, including disbarment. A lawyer who engages in frivolous conduct is not likely to remain a lawyer for very long. 

Despite that fact, Trump has directed his attorney general to go looking for instances of frivolous conduct that somehow escaped the notice of the federal judiciary. And while one party can ask a judge to sanction the other if they have a reasonable basis to believe that they have engaged in frivolous conduct, it is worth noting that doing so without a reasonable basis would itself be frivolous since it would be done solely for the purpose of harassment.  

Trump’s directive also overstates the role the attorney general has in regulating the behavior of lawyers in our nation’s courts. The power to regulate the conduct of lawyers is reserved for the judiciary. Judges, not prosecutors, decide when a lawyer’s conduct is frivolous and deserves to be punished. 

Nor do prosecutors have the power to decide who can file a lawsuit and who can appear in court. Once again, that power resides with judges as well as the federal and state bar associations, which regulate admission to the bar and are responsible for lawyer discipline.   

The real reason Trump ordered Pam Bondi to look for instances of frivolous claims in federal court is because he wants to discourage lawyers from representing people he dislikes. It is also the reason Trump has targeted Big Law firms including Paul Weiss. 

It wasn’t just that they had previously represented Democratic causes; Trump wanted to make sure they stayed out of his way in court. Which is why the price Weiss paid to avoid a protracted legal battle was $40 million in free legal services to support Trump’s policies.  

Trump wants to wield executive power without judicial oversight, and that is much easier to do when only the government is represented by lawyers. Simply put, Trump wants to get rid of his adversaries in our adversarial system of justice.  

John Gross is a clinical associate professor of law at the University of Wisconsin Law School and director of the Public Defender Project.