Taxpayers are footing the legal bill for at least 10 Justice Department lawyers and paralegals to work on lawsuits related to President Trump's private businesses.
Neither the White House nor the Justice Department will say how much it is costing taxpayers, but federal payroll records show the salaries of the government lawyers assigned to the cases range from about $133,000 to $185,000.
The government legal team is defending President Trump in four lawsuits stemming from his unusual decision not to divest himself from hundreds of his companies that are entangled with customers that include foreign governments and officials.
In the cases, Justice Department attorneys are not defending policy actions Trump took as president. Instead, the taxpayer-funded lawyers are making the case that it is not unconstitutional for the president's private companies to earn profits from foreign governments and officials while he's in office.
The government lawyers and Trump's private attorneys are making the same arguments — that the Constitution's ban on a president taking gifts from foreign interests in exchange for official actions does not apply to foreign government customers buying things from Trump's companies. The plaintiffs, including ethics groups and competing businesses, argue the payments pose an unconstitutional conflict of interest.
The Justice Department for weeks refused to answer questions about how many employees were working on the cases and for how long, falsely saying the agency doesn't track such information. USA TODAY identified the government legal staff who are defending Trump’s business profits using the agency's own internal case-tracking database, obtained under the Freedom of Information Act.
The Justice Department traditionally defends the office of the president and its occupants’ rights in court, sometimes under novel circumstances. However, the cases about Trump’s businesses create a historically awkward and unusual position for the public lawyers: the result of their arguments in court is to protect the president’s potential customer base.
“We’ve never before had a president who was branded and it’s impossible to divorce from that brand,” said Stuart Gerson, who served as chief of the Justice Department's civil division for Presidents George H.W. Bush and Bill Clinton. “It’s blurring the lines because it’s so unusual. I can’t think of a precedent where another civil division lawyer has been called on to defend the president under these circumstances.”
The conflict-of-interest lawsuits that the Justice Department attorneys are working on hinge on Constitutional provision aimed at making sure federal officials do not get anything of value from foreign powers that might conflict with their first duty to the United States.
Ethics watchdog groups and other plaintiffs contend that ban applies to foreign governments and officials buying Trump real estate, hotel rooms or other services. Trump’s federal and private lawyers argue that the foreign government customers’ payments are not gifts offered in exchange for him taking action on their behalf.
“In the emoluments cases, you’ve got the DOJ defending him on constitutional principles, but their end goal is to let him keep his money and they’re defending his personal interests,” said William Weinstein, a New York attorney suing Trump in one of the foreign payments cases.
The government and private attorneys working on the cases related to Trump's private businesses all declined comment.
Whether Trump is defended by public or private lawyers can depend on whether someone is suing Donald Trump the person or President Donald Trump. In the case of the Washington hotel Trump's company operates six blocks from the White House, he is defending attacks from all sides, from those who named him in his government capacity, and as the real estate mogul who still draws profits from his family-run hotel empire.
Last month, Brett Shumate, DOJ’s deputy assistant attorney general argued Trump’s case in a Manhattan courtroom. He said that foreigners staying in Trump’s hotels aren’t providing “foreign gifts” because there is no proof they got an official benefit from the U.S. government in exchange for patronizing the president's business.
“President Obama, we know he received royalties from the sale of books during his presidency," the government lawyer argued in court. "Did he violate the Emoluments Clause because he likely would have received royalties from the sale of the books to foreign government representatives?”
Shumate went on to say the arguments that the founders intended for a president’s businesses to not sell things to foreign government customers was absurd. In the end, if the government lawyers' arguments win, Trump’s companies – and he – gain financially.
The Justice Department lawyers' involvement is “strange,” said U.S. Sen. Dianne Feinstein, D-Calif., who pressed Attorney General Jeff Sessions in a hearing last month about how his department determined it was appropriate to defend Trump in the cases about his private businesses.
Sessions said he “believed” DOJ’s Office of Legal Counsel was consulted. Spokesmen for both the DOJ and the Office of Legal Counsel would not answer questions whether the office reviewed the appropriateness of DOJ attorneys working on the case.
“It’s the responsibility of the Department of Justice to defend the Office of the Presidency in carrying out its activities against charges that are not deemed meritorious," Sessions said. "We believe that this is defensible and we’ve taken the position that our top lawyers’ believe is justified."
The department blocked a USA TODAY request under the Freedom of Information Act seeking release of time sheets for attorneys working the case, arguing the lawyers’ hours are covered by attorney-client privilege. USA TODAY has appealed.
For President Trump, the free government attorneys are a bargain. Private attorneys in places like Washington and New York could cost him at least $500 to $1,000 an hour.
“In many ways, they’ve sued the wrong person. When Paula Jones sued Clinton she didn’t sue the president, she sued the alleged sexual assaulter, a private person,” said Andy Grewal, a law professor at the University of Iowa that has written about the emoluments challenges.
Although President Clinton was represented by a private lawyer, because he was sued as a private citizen, DOJ went to court on multiple occasions to argue that the president should not have to defend a private civil suit while in office. Had the court agreed with that view, it would have allowed him to put off dealing with a harassment suit until he left office.