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A U.S. federal judge is questioning which side the Justice Department is on in the era of President Donald Trump.
New York Times reporter Andrew Duehren wrote on Wednesday that U.S. District Judge Kathleen Williams probed the DOJ on something legal analysts have wondered for a year: who exactly is the client of the department?
Bloomberg Law previously reported that when all 93 US attorneys’ offices met for their weekly video chat in January, a 33-year-old Justice Department aide, Aakash Singh, announced that Trump is their “chief client."
Trump sued the Internal Revenue Service (IRS), claiming that it leaked his tax returns to the New York Times in 2019 and that the department should have done more to protect him.
Under a 1924 federal tax law, § 6103 of title 26, Congress can request anyone's tax returns, and the Secretary of the Treasury Department is legally obligated to hand them over. Trump fought that demand in 2019, setting up a legal battle he ultimately lost. Six years of Trump's tax returns were turned over to the House Ways and Means Committee.
But before the Supreme Court ordered the returns, Trump alleged that the IRS leaked his tax returns to the press, revealing that he hadn't paid any taxes in 10 of 15 years after 2000. In 2016 and 2017, Trump only paid $750 in federal income taxes. It also exposed that he wasn't the business genius that he purported to be.
The returns were actually leaked by a third-party contractor for Booz Allen, not by the department or a department employee.
Trump is now suing the IRS for $10 billion, claiming that the government was at fault for the individual who leaked the documents.
Generally, the IRS would be defended in court by the Justice Department. But in the era of Trump, when a top DOJ appointee claims Trump is the "chief client," the presiding judge is wondering whether the IRS has legitimate representation.
“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 released last week. “Accordingly, it is unclear to this court whether the parties are sufficiently adverse to each other.”
Judge Williams then ordered the government and Trump's personal lawyers to submit a brief to answer that question. It forces the DOJ to go on the record about where it stands. That puts them in the awkward position of either telling Trump the DOJ is not his personal law firm or they risk the judge ruling that the IRS doesn't have adequate representation. If the judge finds that the two sides aren't opposed, "lawsuit is void and the judge must dismiss it," the Times said.
“There’s a requirement of adverseness,” Northwestern University School of Law Professor James E. Pfander told the Times. “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.”
The contractor who leaked the tax returns also revealed returns of other famous people who have sued the IRS, demanding damages. In each case, the Justice Department has argued that because the person who leaked the documents was an independent contractor, the government was not responsible for the leak.
"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," wrote Duehren.
“That would hopefully be the result, because there would not be a case or controversy,” Rothenberg said. “The new DOJ is not independent of the president in the way it used to be.”
Another problem is that the DOJ could also simply settle the lawsuit with Trump and have taxpayers hand over billions of dollars to the president. There is an "uncapped pot of money" that Trump's acting attorney general has access to. Thus far it has already agreed to pay off Lt. Gen. Michael Flynn, agreeing that he was unfairly targeted. Flynn admitted he lied to the FBI, pleaded guilty twice in open court and became a cooperating witness. He was ultimately pardoned by President Donald Trump.
“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 former DOJ official Paul Figley, who worked on torts. “If the Department of Justice settles the claim, then the Judgment Fund would pay it.”
Trump claimed in January that if the government handed over $10 billion the public wouldn't care "because it’s going to go to numerous, very good charities."