Trump's Lawsuit Against the IRS is Absurd: Can Bondi Be Trusted To Defend Against It?

My latest Verdict column discusses the absurd lawsuit that Donald Trump, his two eldest sons, and the Trump Organization filed late last week against the IRS and the Treasury Department. The suit seeks damages for a former IRS employee having leaked the plaintiffs' tax data to the public.

The case should be tossed out on a motion to dismiss because the statutes of limitations (SOLs) have run. Whether there will be a motion to dismiss is not clear, however, given that defending against the suit falls to the Department of Justice that Trump has weaponized against his political enemies and which has dropped solid cases against Trump allies. As I explain at the conclusion of the column, therefore, whether the case is tossed on SOL grounds will depend on whether the relevant SOLs are "jurisdictional" and thus not subject to waiver by the government as defendant.

As I also explain in the column, the suit is grotesque for at least three additional reasons. First, Trump's claim of $10 billion in damages is fantastical. Second, the harm that Trump alleges comes from what the complaint itself describes as false stories in various publications, but if the stories are false, then they're not a result of the leaked information, which the complaint itself says is true. Third, Trump had been president for over two-and-a-half years when the leak occurred. The essence of the complaint is that the IRS and thus Treasury, in which the IRS is housed, acted negligently or worse in failing to prevent the leak. But the IRS Commissioner and the Treasury Secretary serve at the pleasure of the president. Trump himself, in failing to adequately supervise or replace them, is responsible for the leak. Talk about unclean hands.

The Verdict column acknowledges that, even though there has never before been a president with the audacity to sue the government for money damages, there could be circumstances in a normal presidency when this might make sense. Here's an example I give in the column:

Suppose that, while vacationing in Yosemite, the president is injured by a negligently driven National Parks Service vehicle. An ordinary citizen would be entitled in such circumstances to sue the United States government under the Federal Tort Claims Act (FTCA). Should the president be barred from suing because the National Parks are within the Department of the Interior, whose head can be fired by the president for any reason? That might seem unfair.

Indeed it might. So let's run with this example. Yosemite is in California. Under California tort law (which would apply in a FTCA case except to the extent that it allows punitive damages), a plaintiff president in my hypothetical example would be entitled to "the amount which will compensate for all the detriment proximately caused" by the tort of negligent driving. Costs of medical care would be offset to the president's health insurance under the Federal Employees Health Benefits Program. That probably wouldn't result in much or any damages to the president. However, the president could recover substantial damages for loss of the enjoyment of life, pain and suffering, and the other elements of actual damages that California tort law allows. Because it would be bad politics at a minimum, I doubt most presidents (other than the current one) would be crass enough to seek damages for such items, but if they did, that would be fair.

But then the question would arise whether the Department of Justice would have a conflict of interest in defending against such a suit. In normal times, the answer is probably not. DOJ professionals would not fear for their jobs in a normal presidency. Although it's obviously a fraught example, it is notable that the prosecution of Hunter Biden during Joe Biden's presidency was initiated by prosecutor David Weiss when he was still the U.S. Attorney for Delaware. Yes, he was a Trump holdover, but President Biden could have dismissed him. He didn't, and then AG Merrick Garland made him a special prosecutor. One can legitimately criticize the tenacity with which Weiss went after Hunter, but that only goes to show that during a normal presidency, the DOJ can be trusted not to go too easy on the president and his family; if anything, it might bend over backwards and err too far in the other direction.

When it comes to federal criminal prosecution of the president's family members, there is no perfect solution. (I omit discussion of criminal prosecution of the president himself, given the assumption that a sitting president can't be prosecuted and the broad immunity conferred by Trump v. United States.) Leaving investigation and prosecution of a president's family members to the DOJ's regular process risks going too easy or, in an effort to appear unbiased, going too hard on the target. But the risk of over-zealous prosecution doesn't evaporate with a special counsel, as Justice Scalia warned in his Morrison v. Olson dissent, and as Ken Starr and arguably David Weiss proved.

The risk of over-zealousness arising out of a special appointment is much mitigated when it comes to civil defense against a damages lawsuit by the president and/or a close family member. There simply isn't all that much that a civil defense lawyer can do to torment a plaintiff. Excessive discovery requests can be handled via motions to the district court. Refusal to settle on reasonable terms might even be salutary in providing assurance that the case is being handled objectively. Accordingly, in the unlikely event that a future sitting president and/or their close family members sue the federal government for money damages, the Attorney General should name an independent special counsel to defend against the suit.

But we need not wait for that unlikely future event. The Trumps' lawsuit is pending now. Attorney General Pam Bondi can and should appoint an independent special civil defense attorney to defend against the Trump lawsuit. The statute authorizing appointments by the AG encompasses civil cases.

There is a worry, to be sure, that an appointment might run afoul of the Appointments Clause in the same way that Judge Cannon held that Jack Smith's appointment did. But maybe authority to defend one civil suit can be accomplished by a mere employee rather than an officer, making the Appointments Clause issue go away. And even if not, Judge Cannon was arguably wrong, in that the statute just cited (and another one that is relevant to criminal investigations and prosecutions) can reasonably be understood as satisfying the Appointments Clause--reflecting vesting in the head of a department the power to appoint inferior officers.

Alas, the interesting questions that appointment of a special civil defense counsel would raise probably won't be answered because it is doubtful that AG Bondi will appoint one. Conflicts of interest are a feature, not a bug, of the Trump administration.

Postscript: Above I mentioned the prosecution of Hunter Biden. Many Democrats and nearly all Republicans criticized Joe Biden for pardoning Hunter. I did not join in that criticism, nor did my co-bloggers. On the contrary, a little over a year ago, Professor Buchanan (here and here) defended the pardon as justified, given the strong indications that the incoming second Trump was eager to weaponize the Justice Department against Trump's perceived political enemies. Events since then have completely vindicated that concern. The most valid critique of the Hunter Biden pardon is not that it was given to Hunter but that President Biden did not also issue pardons to everyone else the Trump administration might vindictively target for prosecution--including, at a minimum, Letitia James, James Comey, Hillary Clinton, Liz Cheney, Adam Schiff, Fani Willis, etc.

-- Michael C. Dorf