Can Trump Sue Himself?
The question recently asked by a federal judge in Miami -- can the president sue an entity in the executive branch of the federal government and benefit from the resolution of that lawsuit? -- seems to beg the question.
How could anyone sue an entity he controls and derive a benefit from the amicable resolution of such a lawsuit at the expense of others who are not parties to the lawsuit?
Here is the backstory.
During President Donald Trump's first term in office, an IRS employee unlawfully released the tax returns of hundreds of thousands of taxpayers, among which was Trump's. The employee pleaded guilty to this crime and served a lawfully appropriate portion of his five-year sentence.
Trump was furious at the revelation, as anyone would be who reasonably expected federal employees to comply with the laws they are sworn, and legally obliged, to uphold.
All those whose rights have been violated by the criminal acts of a government employee have a cause of action against the government seeking to compensate them for the demonstrable harm the government employee caused them.
Congress and the federal courts have insulated the federal government from liability for the consequences of its ordinary, rational, good-faith enforcement of federal laws -- but not from the harm caused by the crimes committed by its employees.
Much of this immunity has unleashed extreme violence on its victims -- the recent murders of fishermen on the high seas by the Department of Defense unlawfully purporting to engage in domestic law enforcement and the on-street murders of innocents by ICE agents in American cities purporting to enforce immigration laws come to mind.
The government killings of innocent persons are objectively criminal, but due to the Department of (Political) Justice dragging its feet on the revelations of its investigations and excluding state prosecutors and investigators, we await a judicial determination.
In the case of Trump suing the IRS -- an entity that he controls, and which is represented by the DOJ that he also controls -- we wait no longer.
Earlier this week, the U.S. District Court in Miami excoriated both Trump's present personal lawyers and his former lawyers who now run the DOJ for engaging in a false cause of action.
What is a false cause of action?
State courts are courts of general jurisdiction. They can hear any matters that in which the litigants have minimum contacts with the state. Many state courts can hear claims under federal law, and all can hear claims under the U.S. Constitution. Some state courts can even render judicial opinions of legislative or executive behavior in the abstract -- before and without any complainant alleging harm.
But federal courts are courts of limited jurisdiction. They can only hear cases that arise under the Constitution and federal laws, or where expressly authorized by Congress or where there is diversity of citizenship -- meaning, a cause of action between citizens of different states where more than $75,000 is in dispute.
But the trigger for all cases in federal courts is the existence of a case or controversy. The Case or Controversy Clause of the Constitution was insisted upon by James Madison so as to limit the power of federal judges to the resolution of real, genuine disputes; prevent the courts from becoming a super legislature; and prohibit the use of federal courts for collusive litigation wherein both sides secretly seek the same result.
When both sides seek or purport to negotiate for the same result -- here the liberty of the plaintiff Donald Trump to file any tax returns he wishes without fear of audit, and the defendant who works for the plaintiff agrees -- there is no real case or controversy because there is no adversity, the lawyers involved acted in bad faith, and their agreement to resolve the case is a nullity.
To avoid the Constitution's case or controversy requirements, Trumps's lawyers - his personal lawyers who filed the lawsuit against the IRS and his former personal lawyers now running the DOJ -- entered into a settlement agreement before the DOJ filed an answer to Trump's complaint.
Under the Federal Rules of Civil Procedure, if parties to federal litigation reach an amicable resolution -- a settlement -- before the defendant files any responsive pleadings, the court has no role to play, except in the case of a manifest injustice.
Trump's complaint demanded $10 billion in damages from the IRS. His DOJ lawyers agreed to give his personal lawyers a fund of $1.776 billion from the federal Treasury to disburse to Trump's supporters at Trump's personal discretion; and his IRS lawyers agreed that neither Donald Trump personally nor his family or closely held corporations could ever be audited by the IRS.
The $1.776 billion was not expressly authorized by Congress. Theoretically, it came from a fund used by the DOJ to settle legitimate -- not collusive -- litigation in which bona fide, demonstrably provable claims were made or monetary judgments were judicially entered against the federal government.
According to the DOJ, none of the $1.776 billion has been spent and the fund is now dormant.
The federal court to which the case was nominally assigned would have none of this. In a blistering ruling, the court found that there was no case or controversy here because there was no true adversity between the parties. The DOJ lawyers and the IRS lawyers were all seeking to please their boss, who is the plaintiff in the case.
The court found that the lawyers involved in this subterfuge, the lawyers who handled this case and crafted its purported resolution, did not act in good faith. Thus, Trump's present personal lawyers and his DOJ and IRS lawyers have been referred to their state licensing authorities for disciplinary proceedings.
Lawyers in litigation have a duty of zealous advocacy and unimpeachable loyalty to their clients. They cannot secretly or openly aid their client's adversary. If they are morally or personally or legally conflicted, they must withdraw from the case.
What about Trump's legally legitimate claim against the IRS for the criminal revelation of his personal tax returns? Had he sued as a private citizen and asked the court to shelve his case until he leaves office, he'd have had a real claim. Now, that claim is gone.
What a legal mess. Trump effectively sued himself and lost! And he grievously jeopardized the legal careers of those who sought to please him. No Trump pardon can help these lawyers. They are now at the not-so-tender mercies of the state entities that issued their licenses to practice law.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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Copyright 2026 Creators Syndicate, Inc.
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