A Plan for Keeping Donald Trump Out of Court | Opinion

Why should the federal courts help President Donald Trump with cases he brings when he is already in contempt of more than one court?

The courts have issued several orders that the Trump administration has ignored, and the courts must decide what to do about it. If the courts can't make a president obey the law—democracy is done in the United States.

FEMA has frozen more than 215 federal grants despite a court order requiring that the money be paid as commanded by Congress. Similarly, courts have ordered some $2 billion in congressional mandated foreign aid be paid as required by law, and, for weeks, the Trump administration refused to pay. Trump ignored a court order that planes carrying deportees should not leave the country.

Most significantly, the government admitted it sent one of those deportees, Kilmar Abrego Garcia, to El Salvador despite a clear court order barring him from being deported to that country. A Maryland federal judge, with the backing of the Supreme Court, has ordered the administration to facilitate his return to the U.S., but the administration has done nothing to comply.

So, what should the courts do about it? First, let's be clear what this is about. It's not whether Abrego Garcia is some sort of hero—or even a good guy. And the same goes for the rest of the deportees. What it's about is whether the president has the power to slap the label of "terrorist alien" on anyone he pleases and whisk them out of the country.

If Trump can do it to Abrego Garcia, he can do it to you. Where would you turn if he did—to the courts of course! And your right to do that is what this is about. The El Salvador deportees were physically restrained from going to court—no one heard the claims of several of them that they were not who Trump said they were. The danger posed to all of us is what the fuss over "due process" is about. It has nothing to do with liking or disliking illegal aliens, and Democrats would be foolish to confuse the two.

It's about respect for the law, and the Trump administration must be compelled to show that respect. But it's tough to do. The courts have only marshals who are part of Trump's own Justice Department to carry out their orders. So, the courts will have to be creative. In addition to other tools, like fines, the courts should consider applying and adapting the ancient "clean hands doctrine," which says that those who want justice from the courts must do justice themselves.

For example, the doctrine might stop a person who stole from their employer from claiming they are owed back wages. Traditionally, the wrongdoing between the parties must relate to the matter in dispute—like money owed from employer to employee. But what about when the wrongdoing relates to matters between the court itself and the party before it? Must a court hear a case for the benefit of parties who are in contempt of court orders in other cases? Wouldn't withholding judgment in a party's other cases be a legitimate way for a court to force compliance with its orders?

If so, it could be a powerful tool in the courts' struggle with Trump. The orders would ultimately have to be approved by the Supreme Court. But the courts could simply stay action on certain types of cases and certain parties to force the Trump administration to follow the law. So as not to interfere with legitimate law enforcement, the order might be limited to civil cases brought by the government in politically-charged cases like the Justice Department lawsuit against Maine over transgender athletes or attacks on law firms, universities, or state officials. It might also include civil lawsuits brought by Trump or his affiliated businesses against companies like CBS or people he does business with. The impact would be serious, and the orders wouldn't require marshals to enforce them.

The judiciary needs tools to preserve the rule of law in this country. Given that he is the country's reigning lawfare king, perhaps the courts should consider denying Trump access to justice until he stops blocking others from it.

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.

The views expressed in this article are the writer's own.