Behind a Paywall: President Trump's Attempt to Chill Public Litigation

President Trump issued a memorandum demanding that judges issue a fee to plaintiffs for every lawsuit brought against the President and his administration as an attempt to chill public litigation. Public litigation is an opportunity and a right of the people to check their government. Though the President has no authority to force judges to issue the fee, the threat of a fee threatens to halt public litigation—one attempt of many in which the President attempts to bypass the judiciary and avoid judicial scrutiny. 

Introduction

President Donald Trump attempts to chill litigation against his administration under claims that lawsuits questioning the constitutionality of the President’s action violate legality and prevent federal funds from funding public safety. Through a presidential memorandum issued through the White House, President Trump enforces a rarely used civil procedure, mandating judges issue an upfront fee plaintiffs must cover as costs defendants might take on because of the lawsuit brought to them. However, this is a clear attempt by the President to chill public litigation despite his obligation to the people of the United States to submit himself to the court of law when the governed questions his execution of power. 

Background

After an onslaught of lawsuits against President Donald Trump, he issued memorandums threatening to chill litigation against him and his administration.

On March 11, 2025, the White House issued a memorandum emphasizing the judiciary’s enforcement of Federal Rule of Civil Procedure 65(c). The civil procedure states that judges can require plaintiffs to pay a security amounting to the amount of financial costs defendants may need to pay in the case of wrongful temporary injunction or restraining orders. Invoking this rarely used law, especially in lawsuits against the government, President Trump successfully uses a legal method to strike back against his avalanche of lawsuits. 

Implications

The president referred to the over 100 lawsuits filed against him and his administration as an overreach of judicial power, an attempted political grab, and for fundraising purposes. The lawsuits range from President Trump’s attack on DEI-programs, Department of Government Efficiency, birthright citizenship, and immigration policies. Many are moving through the courts, obtaining temporary injunctions and moving toward the evidence-gathering and appeal process. He subsequently blames plaintiffs for breaching executive policy making powers, insinuating their participation in an “anti-democratic takeover.” According to the memorandum, President Trump claimed the energy and resources the federal courts are dedicating to baseless lawsuits are taking resources away from defending public safety.

The president cannot however force judges to implement the fee. According to the civil procedure, fees should be equated to the amount of financial loss the defendants should be compensated for. But with the discretion of the fee left in the hands of the courts, they can choose to implement a fee as low as $1 or as high as they want. Legal experts are not sure what courts will decide to do. Simply, the enforcement of this civil procedure is a legal loophole President Trump has found and can wield in his favor, discouraging individuals and organizations from seeking action against him and his administration. However, Justice Department lawyers would have to request the courts implement the fees. Some judges have already struck back, refusing to implement the fee, claiming they are a needless burden on plaintiffs. 

The required fee is a clear attempt by the president to limit the scope of lawsuits against him and a clear warning that the president will find every loophole to prevent legal actions against his desired policies. According to Andrew Bradt, Berkeley Law Professor, plaintiffs often “can't pay a big bond so requiring one would chill litigation,” the threat of substantial fees and its enforcement deterring lawsuits. Bradt speculates that the courts will not impose a fee simply because the cost injuries for the government is difficult to quantify. If judges do not adhere to the civil procedure, then the president’s memorandum will have no consequences, according to Bradt. Yet, he alleges that the threat of fees “might have a chilling effect.”

Other Presidential Attempts to Chill Litigation

On March 21, 2025, the White House published another fact sheet titled, “President Donald J. Trump Prevents Abuses of the Legal System and the Federal Courts” Citing Marc Elias’s 2016 dossier, accusing Russia of interfering with President Trump’s 2016 campaign, the president seeks to prevent law officials from engaging in any “illegal or unethical conduct.” He pointed to Federal Rule of Civil Procedure 11 as reason to halt any lawsuits the president deems unnecessary, stating that the procedure prohibits any unethical conduct including failing to ground evidence in law and failing to argue with factual evidence in support. To assert and emphasize the civil procedure implies the president’s belief that his avalanche of lawsuits are not just unnecessary, but unlawful. 

Upon examining PFLAG v. Trump, a lawsuit against President Trump’s executive order attacking trangender youths’ medical care, presented evidence of the president’s violation of constitutional provisions, including the Fifth and First Amendment, and violations of statutory laws. The basis of facts and legal precedents grounding one of the hundred lawsuits against the president provides substantive evidence of complacency to Federal Rule of Civil Procedure 11.

Essentially, the implications of the civil procedures accuse legal professionals of failing to comply with civil procedures when presenting lawsuits against the president. The need to sign a memorandum to “hold attorneys and law firms accountable for unethical conduct when litigating against the Federal government or pursuing baseless partisan attacks” indicates the president’s perception that law officials are acting above or beyond the rule of law, deterring the people from exercising their constitutionally guaranteed right to question the governance of their government. 

The president claims he is protecting “the nation from partisan and bad faith actors who exploit their influence” from the “weaponization of government” when it is the people of his nation who bring such lawsuits against him. Trump lacks basis for his allegations against legal actors. Alexander Hamilton emphasized that the judiciary was the mediating institution between the people and legislation. To threaten the people’s access to litigation is to reify that the “representatives of the people are superior to the people themselves.” 

Conclusion

President Trump’s bounty of memorandums attacking law officials and the people wielding lawsuits against him lack legal basis, manifesting as simply a threat to deter the exercise of litigation and legal interpretation that checks the president’s executive authority.

Image Source: The Hill