Here we go again. In October, we had a controversy over Donald Trump’s administrative claims threatening a lawsuit for $230 million in compensation from the Justice Department over alleged violations of his rights in the 2016–2018 Russiagate probe and the 2023 FBI search of Mar-a-Lago. The merits of such a suit aside, Trump wasn’t president when the claims were filed — but because they would have to be settled by DOJ on Trump’s watch, it would be scandalous to pay the claims with taxpayer money to the president on the orders of the president or his direct subordinates. Trump himself mused openly about how shady this looked. Moreover, a non-monetary settlement would just involve Trump apologizing to himself. So the claims really should be abandoned.
Now Trump has filed a lawsuit in federal court in South Florida requesting $10 billion in damages from the IRS for the leaking of Trump’s tax records in 2017–2018. Trump’s rights were undoubtedly violated in this case, as I explained in 2023 when DOJ indicted Charles Littlejohn, the outside contractor who leaked the tax returns to ProPublica and the New York Times:
This was no ordinary government leak. Tax returns are private information, and the income tax was controversial from the beginning because of fear that the private financial information collected by the government could be wielded as a political weapon, either by the government or by selective and vindictive public disclosure (or the threat thereof). Breaches of confidentiality call into question the constitutionality of some of the information the IRS collects. Until recently, the IRS had an admirable record of avoiding breaches, but this case involved perhaps the most egregious public violation in memory. . . .
Littlejohn worked for an outside contractor for the IRS, and “from in or about 2018 until in or about 2020 . . . he stole tax returns and return information associated with Public Official A and thousands of the nation’s wealthiest people, including returns and return information dating back more than 15 years.” “He thereafter disclosed the tax information associated with Public Official A to News Organization 1 and the other tax information to News Organization 2. Both news organizations published numerous articles describing the tax information they obtained from” Littlejohn.
It has not been difficult for news organizations to work out that “Public Official A” is Trump, “News Organization 1” is the Times, and “News Organization 2” is ProPublica.
It was therefore an appalling spectacle when Joe Biden’s DOJ undercharged Littlejohn and when Biden rewarded ProPublica with a rare (for him) sit-down interview just as the charges were being announced.
Of course, a violation of Trump’s rights doesn’t mean that the suit would surmount the high bar for finding the government agency responsible. It doesn’t justify Trump’s broad-brush retaliation of firing Littlejohn’s employer, Booz Allen Hamilton, from $21 million in contracts with the Treasury Department, as Scott Bessent just did — although given the scale of Littlejohn’s malfeasance on their watch, I can’t be too sorry for Booz Allen on this one. And most of all, the violation of Trump’s rights doesn’t equate to $10 billion being at all a reasonable claim for damages here.
But even if Trump was seeking more reasonable damages, this is just not a lawsuit he should be advancing now. It’s not that a president could never sue the government. If Trump was trying to recover some illegally seized property of his, or get market-rate compensation for land that was taken by eminent domain, or get back payments on an unpaid contract or pension, or if was pursuing some similar effort to recover what was his, that would be defensible. Presidents don’t give up all of their legal rights when they take the job. But this, like the prior claims, is a tort claim for intangible injuries from government misconduct — the kind of claim that involves a lot of inherent judgment about what cases have legal merit and how to value them. And Trump’s intangible rights have been thoroughly vindicated by winning back the presidency. It would stink to high heaven to pay him from the public treasury at his own say-so now.