CNN
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The Trump administration is taking a shot at the onslaught of emergency lawsuits being filed against it by invoking a rarely used rule that can force people who challenge the government to post money at the start of a court case, according to a White House memo.
In theory, the move could chill individuals, unions and advocacy groups from filing cases, and legal experts say it could be a sly and potentially effective tool for the Justice Department.
Several lawsuits against the Trump administration are being filed each day, often in opposition to immigration and diversity policy changes, spending freezes, the firing of government employees and the efforts of Elon Musk’s Department of Government Efficiency. As of Thursday, nearly 100 lawsuits like these are active in the federal courts.
The White House circulated the memo to agency leaders on Thursday criticizing the lawsuits as partisan-driven efforts that are potentially frivolous, “undermining the democratic process” and exploiting courts where there may be sympathetic judges.
But a handful of the lawsuits have been successful in early stages, convincing judges that changes the Trump administration has made may be unlawful, and agencies have had to put on hold some of the administration’s plans. One federal judge on Thursday, for instance, decided the Trump administration “put itself above Congress” unlawfully when it categorically froze federal grants toward states’ health care programs and to highway, electric grid, broadband and clean water improvement projects.
Nearly all of the cases against the administration are still ongoing, with some advancing into evidence-gathering phases and then, likely, to appeals.
“Taxpayers are forced not only to cover the costs of their antics when funding and hiring decisions are enjoined, but must needlessly wait for Government policies they voted for,” the memo said. “Moreover, this situation results in the Department of Justice, the Nation’s chief law enforcement agency, dedicating substantial resources to fighting frivolous suits instead of defending public safety.”
In the memo sent to executive agency leaders on Thursday, the White House encouraged the invocation of the procedural rule in court.
The memo announced, “It is the policy of the United States to demand that parties seeking injunctions against the Federal Government must cover the costs and damages incurred if the Government is ultimately found to have been wrongfully enjoined or restrained.”
But the memo acknowledged the roles that the courts will play. Judges would need to agree to the need for up-front payment in the cases, set the amounts and enforce the payments.
“Federal courts should hold litigants accountable for their misrepresentations and ill-granted injunctions,” the memo also said.
Invoking the rule for up-front payment in lawsuits like this is virtually unheard of in courts across the country – especially when the government is being sued.
But legal experts familiar with the rule say that because it’s on the books, the Trump administration can try to use it to their advantage.
“It is a very bold move that violates norms,” said Mark Zaid, a Washington-based lawyer who brought an emergency case against the Justice Department last month to stop the release of FBI agent names who worked on federal criminal investigations of Trump. “This is going to be thrown open to the courts … Theoretically, this could be an incredibly powerful for the Trump administration.”
The Trump administration “will exploit any existing loophole or opportunity to make things difficult for anyone challenging it,” Zaid added. “In this case, they actually have identified something that on its face looks to be a utility to rely upon.”
Zaid said he thought it was possible questions around the payment rule could become fodder for the Supreme Court, especially if the Trump administration tries to invoke it in many different courts.
Justice Department lawyers fighting the various lawsuits likely would need to ask judges to set the amounts. The judges could always set a very low cost, such as $1, or not use the rule at all.
But they could also set high prices, due up front.
The rule, part of the Federal Rules of Civil Procedure governing emergency motions for restraining orders and injunctions, says the security amount may be what “the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”
