A group of former government experts on federal tax law and tax policy have made a sweeping new challenge to a promise of legal immunity recently given to President Trump, his family and his far-flung business empire.
A key feature of the ex-officials’ 16-page legal brief, filed Monday in a federal court in Miami, is a claim that the immunity promise is a direct violation of the Constitution’s Article II. That provision assures the President a salary, but flatly forbids “any other emoluments” from the federal government. That has been interpreted broadly, so that it means not only money payments but also “any profit, gain or advantage.”
The most likely effect of this new filing could be that it gives an added reason for a Florida federal judge to move ahead promptly with a broad inquiry into potential illegality by the Trumps, their lawyers and two Cabinet departments of the Trump Administration in creating a sturdy and probably unprecedented legal shield for them.
That promise, barring “forever” any part of the government from looking into or pursuing any claim of back taxes or other existing financial obligations, emerged in May as part of a broader plan that would include payment of $1.8 billion of Treasury money to Trump followers who claim they were targets in the past of illegal government investigations and criminal charges.
Administration officials claim that this payment scheme is now dead, but they also have said that the immunity promise remains intact and is not being withdrawn.
The former tax officials’ Monday filing is focused entirely on the legal flaws they say the immunity promise has. Those officials have already been formally involved in the legal maneuvering that has been going on since January in the Miami court of U.S. District Judge Kathleen M. Williams.
Another group, 35 now-retired federal judges, have also been taking part, but so far they have no formal role in the case, as the former tax officials do. The retired judges are focusing their actions on whether the Trump legal proceedings have been a fraud on Judge Williams’ court. Like the tax experts, the retired judges want her to investigate widely the potential misconduct.
In Monday’s legal brief, the tax experts made three points:
· The immunity is illegal under federal tax law, which prevents Presidents and other top officials from interfering with the tax system, including attempting to prevent audits of their own tax returns. That law was passed after disclosures of such attempts by President Richard Nixon when he was in office.
· No federal law gives the Attorney General the authority to settle a tax case by the immunity promise that Acting Attorney General Todd Blanche gave the Trumps in May – a promise that was apparently tied to creating the fund to pay Treasury money to Trump allies.
· Blanche also violated the Constitution’s Emolument Clause when he acted “to give President Trump a vastly disproportionate gift of total immunity from tax and non-tax liability.” Trump had sued the Internal Revenue Service over disclosure of his tax data, and it was in settling that case that Blanche granted the immunity. The brief cited evidence that President Trump himself had discussed the issue of tax audits with his own lawyers and with Justice Department attorneys.
The first two of those points – claiming a lack of any federal law to support the immunity promise – were meant to answer legal arguments that Justice Department attorneys had made to Judge Williams last week, in seeking to persuade her to drop entirely the ongoing legal controversy.
The constitutional point added by the tax experts was apparently intended to give Judge Williams an even stronger reason to investigate, even if the judge were to agree with Justice Department lawyers on what existing federal statutes might allow.
President Trump was confronted by an Emoluments Clause challenge during his first term in office, for maintaining personal ties with his businesses and having access to their earnings, and for receiving valuable gifts from foreign governments. Both of those claims ended when the Supreme Court, for procedural reasons, refused to allow them to proceed.
The tax experts’ brief referred to those earlier challenges, and characterized the new immunity promise as being of far greater value to Trump, his family and the Trump Organization. The promise might relieve the Trumps and their business, the brief said, of $100 million or more in back taxes or other obligations to the government.
“This appears to be a special deal just for President Trump,” the brief contended.
As Judge Williams weighs what to do next with this controversy, the former tax officials urged her to go forward with an investigation and, specifically, to probe whether those involved – including the Trumps and the Justice and Treasury Departments and lawyers for all of them — “inappropriately used this lawsuit as a fig leaf to provide the imprimatur of legality for the broad immunity” given to the President and his family and associates.
The brief added that the judge may want to find out “who was involved in the discussions” that led to the dismissal of the January lawsuit the Trumps had filed against the IRS and that then led to creation of both the immunity promise and the Treasury payment plan.
