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Why Are Donald Trump’s Lawyers Making Such a Big Deal Over His Tweets?

Earlier this week, plaintiffs in one of the presidential candidate’s three ongoing Trump University lawsuits mocked Trump’s law team’s attempt to remove his own campaign statements from the court room.
(Photo: Andrew Burton/Getty Images)

Donald Trump gives the thumbs up as he arrives at Manhattan Supreme Court to report for jury duty on August 17th, 2015.

As the election looms nearer, the plot continues to thicken on Trump University, one of this election season’s more dramatic subplots, even as all eyes are on the Federal Bureau of Investigation’s ongoing look into Hillary Clinton’s emails.

Three lawsuits, ongoing since 2010, accuse the now defunct for-profit school of fraud and racketeering, and may have already laid the groundwork for a Trump impeachment from the Oval Office—a hypothetical predicated on his succeeding on Tuesday. But now, Trump’s legal team in one of those cases appears concerned that comments made by and about Trump during his attempt to become president—including, yes, tweets—could be endangering his legal defense in these lawsuitsas well. As several news outlets reported Tuesday, Trump’s legal team in Low v. Trump University, LLC is currently battling plaintiffs over a motion to exclude evidence related to statements by and about Trump made on the campaign trail.

Here’s the quick overview, in case you haven’t been following along: Six years ago, a group of private litigants including former students sued Trump and Trump University on 10 different consumer protection charges including false advertising, breach of contract, and fraud. Last month, Trump’s law team filed a motion arguing that campaign evidence is not relevant to their case, and could introduce prejudice into the courtroom. “It is in the jury box where they must judge him and this case only on evidence and argument relevant to the issues at hand,” they wrote in a motion filed October 20th. Items that were not at hand, according to the motion, included campaign-related tweets, speeches, advertisements, personal conduct accusations, and evidence related to “beauty pageants, casinos, and corporate bankruptcies.”

Yesterday, in a response to the motion, the plaintiffs’ attorneys argued the request should be denied on the account of its vagueness, in addition to the fact that some of the evidence requested for exclusion could be highly relevant. Remember when Trump called the judge in the case, Gonzalo Curiel, a “Trump hater” at a rally in May in San Diego, and suggested the reason was because the Indiana-born Curiel was of Mexican heritage? Trump’s lawyers are arguing for that comment, and other statements about Trump University litigation made on the campaign trail, to be barred from use as evidence by the plaintiffs were the motion to be accepted. The plaintiffs have called this argument an attempt to “rig the deck by hiding from the jury his own words.” (Overall, the tone of the plaintiffs’ memo was jocular: They even mentioned Alec Baldwin’s impersonation of Trump on a debate sketch on Saturday Night Live to mock the idea that Trump’s own statement’s could be off-limits.)

While it might seem unusual to request a defendant’s tweets and public statements be excluded from a courtroom, it’s not actually a particularly surprising move on the part of Trump’s law team, says Christopher Peterson, a University of Utah law professor and the author of a recent paper that argued Trump could be impeached on the basis of Trump University litigation accusations.

Peterson used a basketball metaphor: “When somebody’s about to take a shot, you go and you box out underneath the basket to make sure you have the best chance to control the ball after once the ball comes in,” Peterson says. “It’s certainly fair game to get bits and pieces of things that are not relevant.”

Nevertheless, it’s unlikely that a blanket ban on all statements is going to pan out for the Trump team. There is no federal rule of evidence for campaign-related statements, and while Trump’s team is arguing only that campaign-related evidence is not relevant and introduces prejudice, some of the massive amount of information the defendants are attempting to ban—inevitably—is. Trump, as the plaintiffs point out, has admitted to not knowing many instructors that he claims he “hand-picked” in Trump University advertisements while he’s run for president. (Politico called this a “key issue in the suit.”) Trump Organization — one topic the defense is attempting to ban—handled Trump University expenditures.

Courts have ruled before against the relevance of Internet-accessible information in celebrity cases. In 2012’s Apple v. Samsung patent lawsuit, a federal court excluded information about Apple founder Steve Jobs from the courtroom, arguing it was not Jobs himself on trial, but his company; in a 2008 lawsuit that music label The Saturday Team brought against celebrity Tila Tequila, the court ruled that the defendant’s flirty photographs in men’s magazines and on reality shows were not “relevant to the specific claims at issue.”

But in the case of Trump University, “the heart of what the case is about is also that [Trump has] said false things and misled customers,” Peterson says. If Curiel dismisses this motion, he thinks some of the evidence it will allow could further strengthen the case. “The evidence could be shown that he is not credible in his representations, and that makes it more likely for him to lose the fraud case,” he says.

What would all of this mean, then, for Trump’s potential impending presidency? Curiel denied a previous motion to move the trial to 2017 in November, meaning that jury selection is set to proceed 20 days after the presidential contest.

Peterson says that admission of this evidence could help to shorten his tenure in the White House. “If [Trump] loses the fraud case, that makes him more impeachable by Congress,” he says. Six years after Trump University shuttered its doors, the stage is set for a (potential) President Trump ouster.