Let’s don’t waste any time debating the legality of President Donald Trump’s IRS “settlement” (click here to read part one and here to read part two). As my colleague Matt Ford explains at length, this deal is very illegal. The only question is whether Congress and the courts can move quickly to stop Trump’s theft of $1.8 billion from the United States Treasury to reward MAGA criminals, plus several hundred million dollars more to shield Trump and his family from IRS penalties. If they can, we’re a nation of laws. If they can’t, we’re a banana republic.
The settlement is illegal mainly because it violates the Constitution’s domestic emoluments clause, which states:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Trump has, with great impunity, been violating the Constitution’s two emoluments clauses, domestic and foreign, since he first entered office in 2019. The nonprofit watchdog group Citizens for Responsibility and Ethics in Washington sued Trump during his first term over foreign emoluments violations concerning payments to Trump’s hotels and apartment buildings and royalties from foreign-government-owned broadcasters related to The Apprentice. But CREW said Trump’s busiinesses also likely violated the domestic emoluments clause because some of the transactions involved payments from the federal government or state governments.
CREW’s lawsuit was dismissed in district court, but CREW prevailed on appeal and the case was remanded back to the district court. Trump then appealed to the Supreme Court. By now it was September 2020. The high court waited four months and then dismissed the case as moot because Trump had lost re-election. A similar lawsuit brought by the District of Columbia followed a similar trajectory, but didn’t get as far as CREW’s lawsuit before the Supreme Court decided that time had run out. That’s hardly a ringing endorsement.
If an emoluments case could get this far based on Trump’s business transactions, a case in which Trump pockets federal funds directly should be, in any properly functioning republic, a slam dunk. This is not only a legal settlement between a president and his own administration, which is outrageous enough. It’s also a legal settlement of a lawsuit that would lack legal merit even if Trump weren’t president, because the statute of limitations had passed by the time Trump filed it. (More on that here.)
On top of all that, everybody knew Trump was in an unseemly race to settle before the presiding judge, Kathleen M. Williams, tossed the case out. IRS civil servants, bless them, were eager to fight Trump in court! To settle, for a large sum, a lawsuit that’s doomed to fail quickly is grand larceny. Did I mention that the settlement prompted the Treasury department’s general counsel to resign?
Ninety-three Democrats filed an amicus brief Monday urging Judge Williams to “make clear that any purported settlement between the parties, and any related voluntary dismissal, intended to avoid the Court’s scrutiny would contravene the DOJ’s settlement authority and the Constitution.” But by then Trump had already withdrawn his lawsuit, denying Williams any opportunity to reject the settlement. Still, the Democrats’ brief is a good roadmap for future action. “A settlement payment,” they wrote, “especially for an unmeritorious claim … is a straightforward violation of the Domestic Emoluments Clause.”
It’s just a question of figuring out who has standing to sue. In CREW’s earlier emoluments lawsuit the nonprofit teamed up with various people in the hospitality industry who could claim harm from Trump’s market advantage in peddling his influence as president. This time two police officers who defended the Capitol on January 6, 2021—Harry Dunn, formerly of the Capitol Police, and Daniel Hodges of D.C.’s Metropolitan Police—are suing to block Trump’s slush fund on the grounds that it will “finance the insurrectionists and paramilitary groups that commit violence in his name.” The plaintiffs say that they “already face credible threats of death and violence on regular basis; the Fund substantially increases the danger.” Also, it “will directly finance the violent operations of rioters, paramilitaries, and their supporters who threatened Plaintiffs’ lives that day, and continue to do so.”
Hodges in particular had a rough January 6. From the legal complaint:
Making his way to the [Capitol], he was separated from his platoon, hit from above with a heavy object, kicked in the chest, and driven to the ground. Shortly thereafter a rioter grabbed Hodges by the face and tried to gouge out his eyes…. In the rushing crowd of the mob, Hodges was nearly crushed between metal doors by the enraged attackers. He later said that he thought, “this could be the end.”
How do Dunn and Hodges know that January 6 rioters will be compensated? Because Trump spoke last year of creating a compensation fund for them. Asked by a sycophantic NewsMax interviewer whether the rioters would be compensated financially (“because they lost opportunity, they lost income”), Trump answered: “There’s talk about that. There are a lot of people—A lot of the people that are in government now talk about it. Because a lot of the people in government really like that group of people. They were patriots as far as I was concerned.” Trump’s comments caused a minor furor at the time.
The plaintiffs also got a boost Tuesday when NBC News reported that Ed Martin, who used to lead the Department of Justice’s Weaponization Working Group (he now handles the even dirtier business of giving out pardons) was heard earlier this year predicting that the Justice Department would give out millions to the January 6 rioters. Martin was wrong only about the amount, which he low-balled at $40 million.
Rep. Jamie Raskin, Democrat of Maryland, told my TNR colleague Greg Sargent earlier this week that House Democrats would introduce a bill blocking the slush fund and similar efforts in the future, and that they would file a discharge petition to get around Republican House leaders who would otherwise block a vote. “We need to put Republicans on the spot as to whether or not they are going to endorse this rank corruption,” Raskin told Sargent, “or whether they are going to stand up for basic constitutional values.”
We now have a text of that Democratic bill, courtesy of Axios’s Andrew Solender. It bars the use of any federal funds for the settlement slush fund, and says that in future no “compromise settlement or award” may be given to a president, vice president, their families, a president-owned entity, a Cabinet member, a political appointee, etc. In addition, no future settlement can be paid alleging harm from the January 6 riot, the investigation of Russian interference in the 2016 election, or any other civil action that was “dismissed with prejudice.”
There remains the matter of Trump’s cancelled audits. But are they really cancelled? The indemnification language forbids prosecutions and various types of claims, but it doesn’t include the word “audits,” suggesting the prohibition affects penalties but not investigations. I note further that the IRS is not a signatory to the agreement, and that Attorney General Todd Blanche probably lacks the legal authority to cut any such deal without the IRS. “He is not a party to the case,” observe Anna Bower and Eric Columbus on Lawfare, “and he is not exercising any authority delegated to him by the settlement agreement.” Starting in two and a half years, any Justice department “freed from Trumpian political constraints would likely treat Blanche II as presumptively invalid.”
But why wait that long? Assuming the Democrats re-take the House, which remains probable even with Republican redistricting, any brave civil servant at the IRS who blows the whistle on a superior’s attempt to block a Trump audit will be guaranteed a friendly hearing at the House Ways and Means committee. Indeed, any civil servant who obeys any such direction could make himself vulnerable to prosecution; the maximum penalty for failing to resist executive branch interference with an IRS audit is a $5000 fine or a five-year jail sentence. That’s yet another way the law doesn’t allow the deal that Trump just cut. We just need to enforce it. If we don’t, we are no longer a country governed by the rule of law.
