It’s the case of Donald Trump vs. Donald Trump’s Justice Department, and I’ve got a hunch about who might win. 

The story was first reported, shockingly, by the New York Times and not The Onion. Donald J. Trump, private citizen, has filed two claims (through a mandatory bureaucratic process) notifying the Justice Department that he might sue for damages for a litany of purported wrongs: DOJ’s investigation of Russian interference in the 2016 election, the court-authorized search of Trump’s Mar-A-Lago residence, the indictments brought by Jack Smith. The President has demanded the modest sum of $230 million to make him whole again. 

The process at work here, as prescribed by the Federal Tort Claims Act, typically is unremarkable, bureaucratic, boring even. After a potential litigant files the required administrative notice, the Justice Department can decide to either (1) pay a settlement or (2) reject the claim – in which case the potential litigant can then file an actual lawsuit. It’s good government, grinding slowly. 

But Trump’s claim presents two intractable problems. First, we’ve got the most glaring conflict of interest in the history of humankind. As Trump himself observed, “It’s awfully strange to make a decision where I’m paying myself.” (Indeed.) He mused aloud, “In other words, did you ever have one of those cases where you have to decide how much you’re paying yourself in damages?” (Personally, no, I haven’t.)

Trump’s not quite right when he says he’ll be the one to decide whether to pay himself. Rather, any decision to settle for anything over $4 million falls initially to Deputy Attorney General Todd Blanche – who represented Trump as private criminal defense counsel in some of the very same matters over which Trump now threatens to sue. Essentially, Blanche could greenlight a massive award of taxpayer dollars to cover his own legal billables, plus a few hundred million for his own client. (Though Trump has promised that he’ll generously donate any award to “charity or something.”) 

Alternatively, the decision could be made by the head of DOJ’s Civil Division, Stanley Woodward, who represented Trump’ s co-defendant, Walt Nauta, in the classified documents case. From a conflict-of-interest perspective, Woodward would be a mild improvement over Blanche – but he’d still present an obvious crossing of wires. 

Even if both Blanche and Woodward do the right thing and recuse themselves, imagine the poor sap at DOJ who inherits the task of deciding whether to pay out on Trump’s claim. You think he might be aware that the potential plaintiff is also the president of the United States? Could it occur to our hypothetical Justice Department staffer that his two bosses, AG Pam Bondi and Blanche, are both ardent Trump loyalists who tolerate no dissent? Imagine if he were to look at Trump’s demand and conclude, “This guy’s got nothing. Claim rejected.” How quickly would this brave soul be escorted out of DOJ headquarters? 

The second problem posed by Trump’s potential lawsuit is that he probably wouldn’t win in the first place, under ordinary circumstances. The Federal Tort Claims Act does not automatically award damages to any person who is investigated or charged by DOJ but not convicted. Even a dismissal or an acquittal is not enough, without more. Rather, a plaintiff must show some malicious or otherwise wrongful intent by the federal government or an employee. 

On that note, keep in mind: the indictments against Trump didn’t go away because he won on the merits. They died on the vine because he won the 2024 election. Other portions of Trump’s claims appear to be barred by the law’s two-year statute of limitations. For example, even if he filed his first claim in late 2023, as reported by the Times, he’d be out of luck on his allegations relating to the 2016 election interference investigation (which ended in 2019). 

But in the end, the merits will matter little. It’s up to the Justice Department to decide in the first instance whether (and how much) to  pay out, and it doesn’t take a soothsayer to see where that’s headed. And nobody can stop it from the outside. There’s no legal vehicle through which an aggrieved taxpayer or a Democratic dissenter in Congress can sue to block a settlement in this type of case, no matter how self-enriching or otherwise outrageous. When it comes to a potential settlement, whatever Trump’s DOJ says, goes.  

There’s a fair counter-argument here that, if Trump were any ordinary civilian, he’d have the right to file his claim and potentially sue for damages. He probably wouldn’t win, but Jack Smith certainly was no angel – notwithstanding his recent self-serving declarations of purity – and maybe Trump could somehow clear the high legal bar set by the Act. Why should he forfeit that chance because he’s the president?

The answer is simply: Because he’s the president. And when you are elected to run the U.S. government, then you simply don’t get to sue that same U.S. government and have it cut you a personal check for hundreds of millions of dollars. Sorry. The presidency carries plenty of perks, but that’s one small if quite reasonable drawback. 

The theme here has become all too familiar: Trump shouldn’t do it, but there’s nothing and nobody in place to stop him.