This article is about Trump’s lawsuit against the BBC,( which he filed claiming that BBC news defamed him in their reporting, by deceptively editing a video of Trump .)
The lawsuit is now at the stage of discovery, and the BBC’s lawyers are demanding to depose witnesses, which means interviewing Trump in person.
Trump is refusing to cooperate.
The judge says he will “sanction” Trump.
My question is : What does this mean–what powers does the judge have? And how can he enforce them?
Failing to comply with the court’s schedule for discovery in the case, Lett wrote Friday “will lead to sanctions.”
Sanctions in such a scenario could be adverse rulings on costs, or adverse rulings on evidence, for instance a preclusion according to which future evidence would not be admitted. See here:
Normally, refusal to be disposed if subpoenaed could be contempt of court, but I suppose presidential immunity would protect Trump in this regard. Sanctions that operate within the pending litigation, such as adverse costs orders or preclusion of evidence, would, however, be possible.
Disclaimer: I’m a lawyer, but not an American one, so I’m taking this from principles of law that are similar across jurisdictions as well as from the civil procedure rules I linked to.
TL;DR version (as it sounds to me): the judge can make rulings about the evidence that would lead to Trump losing the case, and rulings about who pays court costs and attorneys’ fees that could cost Trump money, so not only would he not win any money, but would walk away with less than he came in with (always assuming they can figure out a way to make him actually pay).
Follow-up question: Trump’s favorite tactic in cases of adverse decisions by a court is to keep appealing upward until the decision is reversed. Since this is a civil case, and the adverse rulings would be the results of Trump’s own (in)actions, what can he do about it if this goes badly for him?
I suspect as an owner of assets personally - golf courses, -lagos, penthouses, etc - his assets are available for seizure and forced sale if it comes down to that. Technically some are owned by Trump Enterprises, so that would mean his share of the enterprises would be available for seizure.
Recall the case of the guy who was harrassed by a bank that mistakenly foreclosed on him, costing him money. He took them to court, they ignored him… until he got a judgement and a bunch of US marshalls helped him start carrying out computers and office furniture from one of the branches.
Well, that’s not exactly a particularly screwed tactic but rather precisely what the appeals process exists for. Anyway, AIUI, sanctions rulings under rule 37 are not appealable separately, but the final judgment determining the litigation in which the sanction was imposed is, just like any other judgment. So if the trial court holds that because of Trump’s refusal to be disposed, certain facts are deemed uncontested, and Trump loses the case on this ground, he could appeal this judgment to the Court of Appeal of the relevant circuit (Eleventh, in this case). Since such appeals are on matters of law only, he’d have to argue that in doing so, the District Court misapplied the federal rules on evidence.
What can the court do if Trump ignores every order? No sanction will stick while in office, and even if it is held over until his term is up, either he pardons himself in advance (if that’s possible), or his successor will pardon him “to avoid national embarrassment”. Cf. Nixon and Watergate.
A pardon removes criminal liability, but has no effect in civil litigation. The courts can, of course, hold that Trump loses this civil litigation. If he’s ordered to pay and flat out refuses to do so, the plaintiffs will have to enforce the award. This will raise the question to what extent presidential immunity protects his assets from seizure in civil enforcement, which is, to my knowledge, unresolved.
(But note that in this defamation case, Trump is actually himself the plaintiff; so the most obvious sanction would be for the court to hold that factual allegations made by him are deemed unproved if he refuses to be deposed, and dismiss the claim on this ground. There’d be no need to enforce anything there.)
I don’t think it has to be that egregious. Frivolous lawsuits are generally frowned upon by most judges, and filing a suit and then refusing to provide evidence that is needed to prove your case certainly sounds frivolous to me. Civil suit plaintiffs ought to, you know, plan ahea d.
It occurrs to me to wonder what would happen it they did manage to depose Trump. In my darkest fantasies, they dispose him, or of him. However if they did get him on the stand, it would probably be such a disaster that one side or the other would request a competancy hearing, and at this stage he might not pass it.
I wonder what the consequences would be if Trump were judged incompetant to testify in a civil case while still president?
Frankly, I think it’s highly unlikely that Trump ever gives a deposition in this case.
His lawyers undoubtedly realize that he would be a disaster under oath – even more so than when he took the stand during the E. Jean Carrol trial, almost three years ago. There will be lots of legal back-and-forths, the judge in this trial will likely rule that the case can’t proceed without the plaintiff’s deposition, Trump will cry foul that he’s not being allowed to sue, etc.
It’ll just linger in the courts for the foreseeable future, with the goal of being a general PITA to the BBC to continue to shell out legal fees.
I think that’s the plan Trump (or his lawyers) are going for. But I don’t think the judicial system is going to let him do so. Trump being the plaintiff, not the defendant, puts all the burdens on him.