The constitutional crisis hiding inside Trump’s $10 billion lawsuit is surreal

Trump is suing the IRS for $10 billion. He accuses the IRS of not doing enough to prevent a former IRS contractor from leaking Trump’s tax returns to The New York Times in 2020. (Using those tax returns, The Times published a series of articles revealing that Trump had paid little or no income tax for many years.)On February 18, Trump’s lawyers served the government with the lawsuit, giving the Justice Department 60 days to respond — a deadline that will be reached, ironically, just around tax day, April 15. So who’s representing you and me and other American taxpayers in this lawsuit? After all, if he wins, we’ll be the ones to have to fork over the $10 billion to him.This is beyond bizarre. Trump heads the executive branch of the United States government. And since being installed as president for the second time, he’s consolidated that power into the closest thing to a dictatorship we’ve ever had in this country.He’s decided on his own to wage a war in Iran, decided on his own not to spend money that Congress has appropriated, decided on his own to move money from one purpose to another, decided on his own to shut down entire federal agencies without Congress’s okay, decided on his own to fire the heads of “independent” agencies and to fire “independent” inspectors general. He’s also taken over the Justice Department — instructing his attorney general to prosecute particular people he deems to be his enemies and to pardon those he believes are his friends and supporters (including 1,200 people jailed for rioting at the U.S. Capitol on January 6, 2021).He’s also issued an executive order that binds all government lawyers to his own interpretation of the law. In other words, Trump has cast himself as the legal embodiment of the United States. So how can the United States defend itself against a lawsuit coming from him? Assigning a Justice Department lawyer to defend the United States from Trump’s lawsuit would pose an insuperable conflict of interest, given that Trump has made it clear that any such person ultimately works for him. Even if the Justice Department asks the unlucky judge who’s presiding over this absurd case (Judge Kathleen M. Williams, an Obama nominee) to appoint an independent counsel to defend us taxpayers from Trump’s lawsuit, who will represent us in the inevitable settlement negotiations with Trump and his lawyers? Who’s going to tell Trump’s lawyers that we’ll cough up, say, $2 billion instead of $10 billion? And how can we trust “our” lawyer to represent our interests, anyway?Here’s a better way.The Supreme Court has given Trump and all future presidents immunity from lawsuits that arise from his (eventually her) official duties. But Trump’s lawsuit against the IRS for leaking his tax returns to The Times has nothing whatever to do with his official duties. He’s therefore not immune to a lawsuit against him for bringing that suit. I have a simple recommendation.Congressional Democrats (and any Republican member of Congress with sufficient guts to join them) should sue Trump for $20 billion.Their lawsuit should allege that Trump’s lawsuit against the IRS and the United States, is (1) frivolous and fraudulent, (see Neitze v. Williams, 490 U.S. 319, 325 (1989)); (2) instigated for the sole purpose of defrauding the United States, in violation of 18 U.S.C. § 371; (3) intended to obstruct normal proceedings of the IRS, in violation of 18 U.S.C. §1512(c); and (4) an interference with the congressional members’ constitutional duties to conduct oversight of the IRS, in violation of Article I of the U.S. Constitution. Trump can’t call on the Justice Department to defend himself from these charges because he has undertaken his lawsuit against the United States as a private citizen. So he’ll have to defend himself — using (and paying for) his own legal team. The members of Congress bringing this lawsuit against Trump should be willing to settle it with Trump for whatever amount Trump is willing to settle his lawsuit against the IRS, plus costs. Congressional Democrats, take it away. Robert Reich is a professor of public policy at Berkeley and former secretary of labor. His writings can be found at https://robertreich.substack.com/

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