President Trump has made no secret of his desire for total control over the historically independent Justice Department, publicly directing prosecutions and declaring that government lawyers must follow his interpretation of the law.
It is a norm-busting approach that has resulted in criminal investigations into several of his perceived political enemies. But his extraordinary influence over the department is now a potential obstacle to one of Mr. Trump’s other apparent goals: receiving a $10 billion payout from the government he leads.
In January, Mr. Trump sued the Internal Revenue Service over the leak of his tax returns to The New York Times in 2019, arguing that the agency should have done more to prevent the disclosures. Mr. Trump, as well as his family business and two of his sons, demanded at least $10 billion in damages.
Officials at the Justice Department, which represent the I.R.S. in federal court, have struggled with how and whether they could defend the case, given that doing so would necessitate that they contradict the president on a legal question. A government attorney has yet to make an appearance in the case, and lawyers for Mr. Trump, not the Justice Department, asked to give the government more time to respond to the suit.
That has left the federal judge overseeing the case, Kathleen Williams, an appointee of President Barack Obama in the Southern District of Florida, wondering whether the Justice Department even disagrees with Mr. Trump’s claims in the suit.
“Although President Trump avers that he is bringing this lawsuit in his personal capacity, he is the sitting president and his named adversaries are entities whose decisions are subject to his direction,” the judge wrote in an order on Friday. “Accordingly, it is unclear to this court whether the parties are sufficiently adverse to each other.”
Judge Williams ordered the government and Mr. Trump’s personal lawyers to submit briefs on the question, essentially forcing the Justice Department to state its position on Mr. Trump’s suit. In a follow-up order on Wednesday, the judge also appointed six private attorneys to provide a memo to her on whether Mr. Trump’s suit is legitimate.
As the judge explained, the Constitution requires that the two parties in a lawsuit are genuinely opposed to each other — and not colluding to engineer a legal ruling favorable to both sides. Without a conflict, the lawsuit is void and the judge must dismiss it.
“There’s a requirement of adverseness,” said James E. Pfander, a law professor at Northwestern University. “If the opponents are, in fact, obligated to follow the president’s assessment of the law, and if the president says, ‘It’s this way and it’s got to be this way,’ there can be no space for a dispute.”
At a news conference last week before the judge’s order, the acting attorney general, Todd Blanche, declined to comment on how the department would respond to Mr. Trump’s suit.
“The Department of Justice handles complicated decisions involving those types of issues every day, all day, and not just this Department of Justice — every Department of Justice handles issues like that,” he said. “We’ll be able to handle it in an appropriate and ethical manner.”
Experts see other problems with Mr. Trump’s case. While federal law explicitly gives people the ability to sue the I.R.S. if their tax information is improperly disclosed, they must do so relatively quickly. A group of former I.R.S. and Justice Department officials filed an amicus brief in the case arguing, among other things, that Mr. Trump filed the suit too late and that his request for at least $10 billion was far too large.
There are other defenses that the Justice Department, if it were so inclined, could raise against Mr. Trump.
Charles Littlejohn, a former I.R.S. contractor, not only leaked Mr. Trump’s tax returns to The Times, but also provided tax information about thousands of other wealthy individuals to ProPublica. Some of those other wealthy Americans have also sued the I.R.S. on the same grounds as Mr. Trump. In response to those suits, the Justice Department has contended that the I.R.S. should not be held liable for the conduct of Mr. Littlejohn because he was a contractor, not a direct employee of the agency.
Those arguments may or may not actually prevail in court. But for the government to not even raise them in Mr. Trump’s case would be a glaring change of course. Gilbert S. Rothenberg, a former tax lawyer at the Justice Department who signed the amicus brief, said he was hopeful that the judge would dismiss the suit, or delay it until Mr. Trump left office.
“That would hopefully be the result, because there would not be a case or controversy,” he said. “The new D.O.J. is not independent of the president in the way it used to be.”
But even if the judge dismissed Mr. Trump’s suit, the Justice Department could still potentially settle the case. Most government settlements are paid out of the Judgment Fund, an uncapped pot of money that does not require congressional approval for any individual payment. Top Justice Department officials, including Mr. Blanche, Mr. Trump’s former personal attorney, control the money spent from the fund.
“If this judge finds there’s no legitimate case before the court at this time, that doesn’t mean that a settlement would be illegal,” said Paul Figley, a former Justice Department official who worked on torts. “If the Department of Justice settles the claim, then the Judgment Fund would pay it.”
There are some signs that Mr. Trump and the government could settle. In their earlier filing asking for more time in the case, Mr. Trump’s lawyers wrote that they were holding talks with Justice Department lawyers “designed to resolve this matter and to avoid protracted litigation.” Mr. Trump’s lawyers did not identify who from the Justice Department was engaged in the conversations.
Mr. Trump’s lawsuit against the I.R.S. is not his only attempt to extract money from the government. In private administrative claims, he has also asked for the Justice Department to pay him $230 million as compensation for the federal investigations into him. Mr. Trump’s I.R.S. suit seeks an order of magnitude more money, though. His demand for $10 billion, if fulfilled, could more than double his net worth.
Mr. Trump has said he would donate the taxpayer money to charity.
“Nobody would care, because it’s going to go to numerous, very good charities,” he said in January.
