Why Donald Trump’s lawsuits against the government should fail | Opinion

President Donald Trump’s latest efforts to enrich himself by suing the federal government for money damages should be quickly dismissed by the federal courts.

Trump and his sons, Don, Jr. and Eric, filed a $10 billion lawsuit against the Internal Revenue Service for wrongly releasing tax information. Trump has also filed an administrative claim — a precursor to suing the United States — for $230 million in damages, claiming he was the victim of malicious prosecution in the investigations of his 2016 campaign’s ties to Russia and his mishandling of classified documents.

There are recent reports that the Department of Justice is struggling with how to handle the suit against the IRS, which is pending in federal court in Florida. Justice Department lawyers are understandably wary of opposing the president — who they work for — in court. There is also a White House executive order that binds all government lawyers to the president’s interpretation of the law.

Trump has threatened to settle both cases for billions of dollars without a judge ever passing on the merits of his claims. But neither case can lawfully be pursued, much less settled. As president, Trump oversees and ultimately controls the Department of Justice, so he cannot sue or settle with himself.

If “conflict of interest” has any meaning, it would obviously be Trump settling a personal claim with his Department of Justice. In fact, his picture now appears on the front of the building.

Citizen Donald Trump, in his personal capacity as the plaintiff, is entitled to control his side of both cases against the United States. He gets to hire, supervise and fire his personal lawyers. As the client, he directs the course of the litigation, including deciding whether and when to settle. The legal claims seem weak, and his seeking hundreds of millions — let alone $10 billion — in damages seems absurd. But he, like anyone, can file a lawsuit and even make an outlandish request for damages.

President Donald Trump, as head of the “unitary executive,” also ultimately controls the government’s side of both cases. As the Supreme Court has declared, the president is “the only person who alone composes a branch of government.” He hand-picked the heads of the Justice Department, and he can fire them at will.

Todd Blanche, the new acting attorney general with power to settle the cases, used to be Trump’s personal lawyer until Trump moved him from one side of the board to the other. There is every indication that Blanche will do whatever Trump wants. And, if not, he can be summarily removed from his position.

Thus, Trump pulls the strings of the lawyer-puppets on both sides of the versus. Where, however, a single person controls both sides of a purported lawsuit, it does not qualify as a “case or controversy,” and cannot be pursued in a United States court.

Article III of the Constitution limits federal courts to hearing and deciding “cases” and “controversies.” The Supreme Court, since early in American history, has held that genuine “adversariness” is an essential component of an Article III “case or controversy.” The court has thus repeatedly ruled that federal courts lack the power to hear a dispute when the same person controls both sides of a lawsuit.

For example, in United States v. Johnson, in 1943, the Supreme Court dismissed a case where one party controlled both sides of the litigation. The court ruled unanimously that it “is the court’s duty to (dismiss) where, as here, the public interest has been placed at hazard by the amenities of parties to a suit conducted under the domination of only one of them.”

This is, of course, exactly as it should be. Federal courts should not be used for collusive litigation. They should not handle cases where there is a manifest conflict of interest, which certainly exists when Trump would be settling suits with his Justice Department.

Nor, of course, should taxpayers stand for their dollars being lost in this way. The response should be outrage to Trump trying to settle claims with his Justice Department lawyers.

Judge Kathleen M. Williams, who is handling the case against the IRS, can uphold the law. She can dismiss the case as collusive, appoint an independent lawyer to represent the United States or order the case delayed until after January 20, 2029. She can also reject any settlement.

The one thing Williams should not allow is to permit Trump to control both sides of his damage actions against the United States, collusively settling for billions and leaving taxpayers to foot the bill.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. Burt Neuborne, one of the nation’s foremost civil liberties lawyers, teachers and scholars, is the founding legal director of the Brennan Center for Justice at NYU School of Law.