Trump is suing his own government for $10 billion

One thing about fundamental legal principles is that they are rarely expressly feature in litigation – at least not expressly. That is because they are fundamental – they are shared and assumed to apply.

Such principle provide the “rules of the game” and the courts deal with disputes about things the parties do not share in common, like differing views on the facts and on the applicable law in a particular situation.

This is why – at least until fairly recently – constitutional law text books both here and in the United States often did not have many recent cases as precedents or even illustrations of certain fundamental principles. An 1800s case there, a 1700s case here, some vague mention of Magna Carta, and that would be it – for paragraph after paragraph, and chapter after chapter.

But the Brexit-Trump years have changed this. Such is the jolt to the United Kingdom and United States polities that certain hitherto constitutional and legal norms in the background have to the fore. Points which one never expected to be the subject of a practical case now fall for judicial determination.

And in the United States we have a case which goes to the very heart of any litigation system, with the court having to ask “what actually is a dispute?”.

That case, of course, is the one where Donald Trump is suing the United States Treasury and the Internal Revenue Service.

I have written about this case this week over at Prospect – click here.

Although nominally Trump is doing this (with his son and company) in a personal capacity, and not formally as president, the reality is that the president is suing his own administration – for $10 billion.

And so in reality he wants to negotiate, with himself, and to agree, with himself, for a resolution where the suit is compromised for a high amount of money, in the region one suspects of $10 billion.

It is an extraordinary case, even at a time of many extraordinary cases.

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In one way, Trump has a point: he was legally wronged by the Treasury and IRS. His tax returns were unlawfully leaked. And this is the case even if he, like other presidents, should have voluntarily disclosed his tax returns to the public. There has been a prosecution and a conviction of the leaker.

A follow-on civil case is not thereby surprising, for generally (but not universally) when there is a crime there is also a tort.

(That said, there was once an over-confident law lecturer who insisted that there was a tort for every crime and challenged the class to gainsay him, to which one annoying student offered ‘blasphemy’. Sorry.)

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So if Trump has been civilly wronged, he should in principle be able to bring a case for damages.

But what makes this case problematic is that he currently controls both sides of the litigation.

This is because of his position as head of government, and also because of an executive order which prevents any federal body or employee from putting forward a view of law distinct from the president.

All this means that not only is he effectively litigating with himself, he would also be effectively negotiating with himself for settling that litigation.

(A great deal of civil litigation ends in settlement.)

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There is a legal principle so fundamental that it is sometimes described as one of the very rules of natural justice.

This principle is that a person should not be a judge in their own cause.

Here the application of the principle would be that a person should not settle a legal dispute with themselves. Indeed, one can fairly ask if there is a dispute at all in such circumstances.

And that is what the federal judge has asked in this case.

In this fascinating four-page order judge Kathleen Williams goes back to the very first principles of law to ask whether there is actually a dispute here to be determined.

She did not dismiss the case, but she is now seeking legal argument on the point.

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Given there has been a civil wrong to Trump, there is the question of how his private law rights could be enforced against the government while he is a sitting president.

Perhaps the case should be stayed for the duration of his presidency, without prejudice to any limitation period. Or perhaps independent attorneys should be selected to litigate the case on the parties’ behalf, with Trump blind to their litigation decisions, or there could be some binding independent third-party adjudication.

There are various ways his legal position could be reserved or protected so that he is not simply negotiating a settlement with himself.

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When litigation lawyers are trained they are warned about sham litigation cases where for money laundering or other purposes an artificial dispute is contrived and then “settled” for a huge a mount of cash changing hands.

What is happening in the United States is not a sham case: Trump has a claim.

But there are ways and means of bringing a claim, some less artificial than others, and the federal court in the United States now has to work out a way for Trump’s claim to be addressed while avoiding the spectacle of the president negotiating with his own federal employees for a cash payment of up to $10 billion.

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