When the plaintiff controls the defence
Normally, the Justice Department would defend the federal government against such civil lawsuits.
But the Justice Department has seen its independence erode under Trump’s leadership, and its top official, Attorney General Pam Bondi, is a close political ally of the president.
For the case to move forward, Sus said lawyers representing the Justice Department have an ethical obligation to avoid any conflict of interest.
But Trump has “asserted a maximalist view of his authority under the Constitution”, Sus explained, and it is unlikely the Justice Department could act independently of Trump’s wishes.
That conflict of interest is likely to raise eyebrows in court, Sus added, and a judge might seek to minimise Trump’s influence over the Justice Department’s defence.
“His position is that he has direct control and supervision over every employee of the executive branch, right?” Sus said.
“So he cannot, in this case, argue that the Justice Department is distinct from his oversight and the White House, because he’s argued the exact opposite in writing on numerous occasions.”
The court could opt for a delay. Or it could appoint an independent counsel to defend the federal government, someone with no connections to the Trump White House.
Either option would prevent the president from negotiating a settlement with his own Justice Department, according to Sus.
But advocates like Bellows warn that, without a failsafe to prevent the Justice Department from bowing to his demands, Trump would essentially be able to name his own price.
“If he’s successful, and the DOJ goes along with this heist, then that becomes the new standard for the ways in which we ignore conflicts of interest and use our judicial system as a way to enrich the people currently in office,” Bellows said.
“There’s the risk of a complete free-for-all.”
In a statement to the media, however, the Justice Department denied the potential for impropriety.
“In any circumstance, all officials at the Department of Justice follow the guidance of career ethics officials,” it said.
Trump’s personal lawyers did not return a request for comment by time of publication.