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Trump May Be on the Hook Legally to Pay Elizabeth Warren Over DNA Test

Aww, Donald Trump is so cute when he shows how little he knows about contract law. It seems that in his zeal to out-snark Elizabeth Warren, he stumbled his way into the wrong side of a hypothetical for a 1L Contracts exam.

In July at a rally in Montana, Trump said that if he faced Warren in the 2020 election, he would publicly demand she take a DNA test while on television at a presidential debate. He continued, saying, “I will give you a million dollars to your favorite charity, paid for by Trump, if you take the test and it shows you’re an Indian.”

Warren, who has not yet announced a bid for the White House, tweeted Monday that she’d take Trump up on his generous offer:

Those of us who went to law school learned early that one should be careful when one makes offers publicly. In fact, Trump’s grand promise to pay $1 million to charity in exchange for Senator Warren’s DNA test fits the textbook definition of an “offer to enter into a unilateral contract.” The president’s statement has all the hallmarks of intent to be bound – including publicity and specificity. Under standard (and I mean the dating-back-to-olde-English-and-not-changing-at-all-since-then standard) rules of contract law, a person can accept the terms of such an offer by fully performing as set forth in the demand. Therefore, Warren would simply have needed to take the test and “show [she’s] an Indian,” and at the minute she did so, a contract formed between herself and Trump. In other words, she did her part, and now he has to pay up.

Of course, there can be some counter arguments, weak though they are. For example, Trump could come up with the disingenuous and offensive stance that he was “just joking,” and that his statement couldn’t reasonably be construed to be a serious offer. That might work if Trump hadn’t created the birther movement, or if there were literally anything funny about the circumstances of his repeated attacks on Warren. There’s also a losing argument to be made that Trump’s offer and Warren’s acceptance fails as a contract on other grounds – such as lack of consideration, or conflict with public policy. The problem with those (as it is with so many things) is Trump himself and his very specific history with these kinds of public threats.

When reporters asked Trump about his budding contract with Elizabeth Warren on Monday morning, the president said, “Who cares?” But there was a time when Trump did care about public demands for genealogy records.

Back in 2013, Bill Maher went on late-night TV and mocked Trump’s demand for President Barack Obama to prove his citizenship. Maher riffed, “suppose that perhaps Donald Trump had been the spawn of his mother having sex with an orangutan, because, well, I didn’t just make this up. The color of his hair and the color of an orange orangutan is the only two things in nature of the same color. . . . I’m not saying it’s true, I hope it’s not true, but unless he comes up with proof, I’m willing to, I’m willing to offer five million dollars to Donald Trump that he can donate to a charity of his choice, Hair Club for Men, the Institute for Incorrigible Douchebaggery, whatever charity . . .”

Even though basically everyone knew Maher was making a joke, Trump didn’t get it. Instead, in what read like a scene in an after-school special on bullying, Trump actually brought a birth certificate to Bill Maher that showed that his father was a human. When confronted with the idea that Maher might only have been joking, Trump responded, “I don’t think he was joking. He said it with venom. That was venom. That wasn’t a joke. In fact, he was nervous when he said it; it was a pathetic delivery.” Trump, with the assistance of his then-attorney, Michael Cohen, promptly sued Maher for the $5 million promised to charity and bragged to Fox News about it.

Maher didn’t seem too worried:

Apparently, Cohen read up on contract law before the case progressed, because the lawsuit was withdrawn shortly after filing.

So, to recap: Maher, a comedian, makes joke about Trump’s birth certificate …. not an offer, therefore no contract. Trump, the president, makes non-joking offer to Elizabeth Warren which she accepts….contract. This is about as basic as it gets in contract law, but I guess that wasn’t part of the research for The Art of the Deal.

Elizabeth Warren probably has better things to do than litigate against the president for a donation to charity, but it really would be entertaining if she did.  As we know, presidents aren’t immune from civil litigation during their term, and trial coverage for Warren v. Trump would be the ultimate courtroom showdown.

[Image via Joseph Prezioso/AFP/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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