Trump’s latest legal battle against the Republican Party could really come back to bite him
Trump is treating his failed former presidency like his failed brand of steaks, casinos, condos, board games, television shows, beauty pageants, and vodka. Sorry, Donald, it doesn’t work that way! Presidents aren’t brands that can be copyrighted; they are public figures, even historic ones like the worst president in American history (you).
The standard for legal action stemming from their use of their name and likeness is very, very high. You don’t see Abraham Lincoln’s family suing over the use of his likeness to sell mattresses or Lincoln Day Dinners, so you can’t sue just because House Minority leader Kevin McCarthy (Q-CA) puts you in his mailings.
This week, the former president told his “allies” in the GOP to stop using his name and likeness to raise money for their campaigns and PACs while Trump’s leadership PAC “Save America” has raked in over $31 million since the 2020 election.
It’s his grift, and he has no interest in sharing.
He is even currently encouraging his supporters to give him their $1400 stimulus check, presumably so he can fill his bathtub with champagne.
There’s a lot to unpack here, so let’s start with Trump’s cease-and-desist letter to his fellow Republicans. Every 1L law school student can point out two basic problems with his demand.
First, the Supreme Court has held that the highest form of protective speech is political speech, and that extends to political fundraising. From Buckley v. Valeo to Citizens United, the Supreme Court has connected the expenditure of money with speech protected by the First Amendment. In fact, Justice Kennedy wrote in Citizens United, “limiting independent political spending from corporations and other groups violates the First Amendment right to free speech.” The Citizens United Case concerned a politically motivated film designed to crush Hillary Clinton’s chances in the 2008 Democratic Primary.
Second, he is the victim of his own success which will lead to his ultimate failure as a businessman whose career is based on controlling his name and likeness. The minute Trump became President he surrendered some of his privacy rights. Trump achieved his goal of becoming the most famous person on earth and all the publicity that came with it. He can’t just walk that back and pretend he was a private citizen living in the Oval Office. His image, as grotesque as liberals might find it, no longer belongs entirely to him.
It follows that courts would likely never block a politician, a party, or campaign committee from invoking the name, likeness, or policies of Donald Trump, the 45th President of the United States.
“I haven’t found any cases using celebrity for political fundraising, only to promote a product. Courts balance 1st Amendment rights against individual’s rights to publicity,” former Watergate prosecutor Jill Wine-Banks told me by text message when asked about the possibility that there could be a Trump vs. Republican National Committee lawsuit.
She brings up a good point from a legal perspective, which is that any court action filed by the former guy would probably be what’s known as a “case of first impression” where judges are rendering an opinion without a clear past precedent. Novel court filings from the White House led to protracted litigation throughout the last administration from lawsuits that made their way through the courts in everything from the emoluments clause to Congressional subpoena enforcement and even E. Jean Carroll’s allegations of rape.
“Not sure how it will come out,” says Wine-Banks, “but politically it is very interesting.”
The RNC seems willing to test Trump’s legal resolve and issued a public statement rejecting his demand.
“Enough already! Every legal challenge the campaign has raised to the Supreme Court has failed,” Ron Christie, a former aide to President George W. Bush told me. “The President ran a spirited campaign and lost. This is a difficult concept for him and his supporters to accept. I understand that.” The Harvard-educated Christie continued:
“Issuing ultimatums to his own political party is a most unwelcome development. The Republican Party – as well as the Ds – are more than one person. That President Trump doesn’t see, care or understand this troubles me deeply.”
Perhaps Republicans will see this letter from Trump as a reason to exit from Trumpism and move on out of fear he will bash them for using his likeness. It’s also likely that Trump will attack them for not talking about him as they attempt to raise money in other ways. Whichever way this goes, I am enjoying copious amounts of popcorn while watching the Republicans being eaten alive by the monster they thought they controlled.
As for Trump’s personal grift, let me be clear, his attempt to hoard these donations proves that he desperately needs this cash. This grift is all he has left. This is how he plans to earn the funds to keep his private jet in the air. Asking working-class Americans to hand over their stimulus check is about as low as any political figure has gone, if you ask me.
What’s worse is there are far too many American’s who won’t see it that way and send him that money. His PAC already swindled unsuspecting MAGAs out of millions for election lawsuits it lost almost unanimously or never filed at all.
At least with Trump Steaks, you got a steak.
