A former federal prosecutor says President Donald Trump's Justice Department just locked itself into a fight over his taxpayer windfall that it can't win.
Harry Litman, a former U.S. attorney, argued in a Thursday episode of "Talking Feds" that the DOJ's new brief to the 11th Circuit Court of Appeals hinges on the deal being a genuine settlement. That's the only way it can draw on a settlement fund Congress created, he explained, and the DOJ can't prove it.
"The administration and Department of Justice are doubling down, or you could say quadrupling down or more, on every lousy argument in the Donald Trump tax case," Litman said.
Trump sued his own IRS for $10 billion over a leak of his tax information by a contractor, a claim Litman called "completely meritless" and too late to bring. Rather than fight it, the DOJ agreed to a voluntary dismissal, a $1.776 billion fund and a promise shielding Trump from IRS audits of his past taxes. U.S. District Judge Kathleen Williams has since moved to unwind it after a group of former judges argued the court never had jurisdiction over a case where both sides were on the same team.
The DOJ's proof that it was truly adverse to Trump, Litman noted, is that he didn't get all $10 billion he demanded.
"If you read those restrictions on Congress' fund carefully, they show it's got to be a bona fide settlement. We're not giving you this chunk of money so you can just give it over to whoever you like and not actually do your job as lawyers," he pointed out.
Litman warned that if the department retreats to claiming it doesn't need a real settlement at all, that would amount to "a complete kind of breathtaking ultra vires."
"Just come on up, boss, and bring your wheelbarrow and take whatever you want, even though we have no money to give you because it hasn't been appropriated by Congress," he mocked, describing that fallback.
He contrasted the case with U.S. v. Nixon, where the DOJ fought President Richard Nixon's privilege claim. "Here, they were diving into bed as fast as they could with Trump to get him what he wanted," Litman added.
He called the 11th Circuit "a wild card" but said it will strike the deal down if it sees the case clearly.
"The collision course between the DOJ and Trump on the one hand and Congress and the Constitution on the other has been really set," Litman said. "And they're hurtling toward, we have to hope, a brick wall."