(WASHINGTON) — A federal judge is raising concerns about whether Donald Trump’s attempt to sue the IRS for $10 billion can proceed, signaling she could throw out the case because the president oversees the government entities he is suing.

Judge Kathleen Williams raised the issue in an order on Friday denying a request to delay the case amid possible settlement talks.

She noted that Trump and the defendants — the Treasury Department and IRS — may not be “sufficiently adverse” to one another for the case to proceed. 

“Moreover, although President Trump avers that he is bringing this lawsuit in his personal capacity, he is the sitting president and his named adversaries are entities whose decisions are subject to his direction. Indeed, President Trump’s own remarks about this matter acknowledge the unique dynamic of this litigation,” she wrote.

Williams ordered both Trump’s lawyers and the Department of Justice to submit briefs about why the case should proceed and set a hearing for next month. For the case to proceed, Trump’s lawyers and the DOJ need to establish that the lawsuit is “a dispute between parties who face each other in an adversary proceeding.”

“Typically, adverseness is found in a situation where one party is asserting its right and the other party is resisting,” she noted.

But with Trump in charge of the very government entities he is suing, Williams noted that the required adverse relationship between the parties may not exist. She added that Trump has signed multiple executive orders tightening the president’s control over the executive agencies like the Department of Justice.

“One such employee of the executive branch, the Attorney General, has a statutory obligation to defend the IRS when it is hailed into court, but then is ostensibly required by executive mandate to adhere to the President’s opinion on a matter of law in such a case. This raises questions over whether the Parties here are truly antagonistic to each other,” Williams noted. 

Trump, his sons Eric Trump and Donald Trump Jr., and the Trump Organization filed a lawsuit against the Internal Revenue Service and Treasury Department in January related to the unauthorized disclosure of tax information during Trump’s first term.

A government contractor with the IRS pleaded guilty in 2023 to stealing the tax information of Donald Trump and other wealthy Americans and leaking it to media outlets in 2019 and 2020. 

In a court filing last week, lawyers for the Trumps said that they were “in discussions” with the Department of Justice to potentially resolve the lawsuit and requested a deadline extension so they can “engage in discussions designed to resolve this matter and to avoid protracted litigation.”

The filing said both sides agreed to the 90-day extension. The Department of Justice had not yet responded to the lawsuit and faced an impending deadline this month.

The Trumps, in the suit, argued that the IRS and Treasury Department should have had “appropriate technical, employee screening, security, and monitoring” to prevent the theft of tax information.

A group of former government officials last month filed an amicus brief with the court to raise concerns about the ethics of the president suing his own government for billions.

“This case is extraordinary because the President controls both sides of the litigation, which raises the prospect of collusive litigation tactics,” the amicus filing said. “To treat this case like business as usual would threaten the integrity of the justice system and the important taxpayer and privacy protections at the heart of this case.”

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