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The question recently asked by a federal judge in Miami - can the president sue an entity in the executive branch of the federal government and benefit from the resolution of that lawsuit? - seems to beg the question.
How could anyone sue an entity he controls and derive a benefit from the amicable resolution of such a lawsuit at the expense of others who are not parties to the lawsuit?
Here is the backstory.
During President Donald Trump’s first term in office, an IRS employee unlawfully released the tax returns of hundreds of thousands of taxpayers, among which was Trump’s. The employee pleaded guilty to this crime and served a lawfully appropriate portion of his five-year sentence.
Trump was furious at the revelation, as anyone would be who reasonably expected federal employees to comply with the laws they are sworn, and legally obliged, to uphold.
Congress and the federal courts have insulated the federal government from liability for the consequences of its ordinary, rational, good-faith enforcement of federal laws - but not from the harm caused by the crimes committed by its employees.
In the case of Trump suing the IRS , earlier this week, the U.S. District Court in Miami excoriated both Trump’s present personal lawyers and his former lawyers who now run the DOJ for engaging in a false cause of action.
Trumps’s lawyers - his personal lawyers who filed the lawsuit against the IRS and his former personal lawyers now running the DOJ - entered into a settlement agreement before the DOJ filed an answer to Trump’s complaint.
Under the Federal Rules of Civil Procedure, if parties to federal litigation reach an amicable resolution - a settlement - before the defendant files any responsive pleadings, the court has no role to play, except in the case of a manifest injustice.
Trump’s complaint demanded $10 billion in damages from the IRS. His DOJ lawyers agreed to give his personal lawyers a fund of $1.776 billion from the federal Treasury to disburse to Trump’s supporters at Trump’s personal discretion; and his IRS lawyers agreed that neither Donald Trump personally nor his family or closely held corporations could ever be audited by the IRS.
The $1.776 billion was not expressly authorized by Congress. Theoretically, it came from a fund used by the DOJ to settle legitimate - not collusive - litigation in which bona fide, demonstrably provable claims were made or monetary judgments were judicially entered against the federal government.
According to the DOJ, none of the $1.776 billion has been spent and the fund is now dormant.
The federal court to which the case was nominally assigned would have none of this. In a blistering ruling, the court found that there was no case or controversy here because there was no true adversity between the parties. The DOJ lawyers and the IRS lawyers were all seeking to please their boss, who is the plaintiff in the case.
The court found that the lawyers involved in this subterfuge, the lawyers who handled this case and crafted its purported resolution, did not act in good faith. Thus, Trump’s present personal lawyers and his DOJ and IRS lawyers have been referred to their state licensing authorities for disciplinary proceedings.
Lawyers in litigation have a duty of zealous advocacy and unimpeachable loyalty to their clients. They cannot secretly or openly aid their client’s adversary. If they are morally or personally or legally conflicted, they must withdraw from the case.
What about Trump’s legally legitimate claim against the IRS for the criminal revelation of his personal tax returns? Had he sued as a private citizen and asked the court to shelve his case until he leaves office, he’d have had a real claim. Now, that claim is gone.
What a legal mess. Trump effectively sued himself and lost! And he grievously jeopardized the legal careers of those who sought to please him. No Trump pardon can help these lawyers. They are now at the not-so-tender mercies of the state entities that issued their licenses to practice law.