Who should represent government when the president sues it?

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America’s most prolific litigant in the last 12 months is the current president of the United States. More often, he is the defendant and if he is not the defendant, members of his cabinet and the agencies for which they are responsible are the defendants.

But President Donald Trump is developing a significant track record as a plaintiff. News organizations, “big law,” major universities, would-be retribution targets and many others have found themselves on the receiving end of his litigation initiatives. But he has broken new ground now by filing several claims against the government that he now heads – roughly $230 million reported by the press in October against against Attorney General Bondi’s Department of Justice and now only a few days ago a $10+billion (plus punitives) suit in federal court in Florida (nesting place of Judge Cannon) against the IRS and various treasury officials for indirectly disclosing tax returns that indicate that in several years he paid only $750 in taxes. He was joined in his latest suit by two of his sons and the Trump organization.

Leaving aside for the moment the merits or timliness of the claims in these two cases, and imagining just who from DOJ might agree to sit at the defense counsel table at trial, we should focus now before it’s too late on the question of just who should represent the government in these two mega cases – starting with critical initial pleadings and/or early settlement discussions. It cannot be that President Trump‘s own Department of Justice would represent the government in these unusual cases – especially given that the DOJ is led by the President’s prior private lawyers. Not only are the ranks of the DOJ depleted by substantial resignations and firings, and not only is it busy enough handling volumes of other litigation, but ethical considerations compel the hiring of outside courageous independent lawyers from the private bar to represent and defend the government in these cases.

A thoughtful and ethical administration would need to be especially careful to ensure that the outside counsel selected has no direct or indirect ties whatsoever with Donald Trump or his businesses or family members. In addition, the White House would need to be scrupulously transparent in its selection process and its adherence to proper ethical considerations, even to the point of seeking to ensure that the attorney or attorneys selected to defend these cases would begin by putting both of these cases and claims on an indefinite hold until Donald Trump is no longer the president.

Alternatively, a vigorous preliminary defense could be mounted by initial motions to dismiss based on limitations or other factors, although that kind of aggressive early defense might anger the president. Ideally, the counsel chosen to defend these claims/cases should continue to serve past the end of the presidency, so as to ensure that the next president does not put his or her hand on the scale one way or the other in connection with the ultimate resolution of these claims. In addition, the designated outside counsel should be empowered to make the final decisions on any settlement of both of these claims, subject only to Congress’s power of appropriation.

If the White House does not adopt and commit to something like the above process, Congress should step in and enact legislation embodying these terms in a bill capable of being passed by a simple majority of both houses.

This is what would happen in a different world. Regrettably, given the Administration’s track record so far on ethical matters, we are not optimistic that any such steps will be taken by the White House. We can only hope that Congress will step into the fray and do so quickly before the President’s own DOJ blesses an early settlement.

Unfortunately, the likelihood that Congress, as currently constituted, will move to ensure integrity to the process quickly is nonexistent, and any action that is not timely will be ineffectual. That by process of elimination leaves the federal judiciary, whose track record at least below the Supreme Court is better than that of Congress (which is damming with faint praise) to rein in this prospective trampling on the Rule of Law.

Editorial Advisory Board Members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Steven I. Platt

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.