The Supreme Court’s ruling that former President Trump can’t be prosecuted for “official acts” ignited concerns among tax lawyers and academics that the IRS could be more easily wielded as a tool against political opponents.
The Court on July 1 ruled 6 to 3 in favor of Trump in Trump v. United States that the former president can’t be prosecuted for alleged efforts to overturn the November 2020 election but that he could still be prosecuted for “unofficial acts.”
The decision raised questions about what constitutes an official act and whether it could open the door to abuses of power by federal agencies, including the IRS.
It is a felony for the president, vice president, or any of their employees — except the attorney general — to direct the IRS to audit a taxpayer or cancel an audit.
Ken Hughes, a historian of former President Richard Nixon at the University of Virginia, said the ruling in Trump “would have granted President Nixon presumptive immunity for his corrupt, authoritarian, and plainly politically motivated attempt to use the IRS against financial contributors to the Democratic Party and the chairman of the Democratic National Committee, Larry O’Brien.”
Hughes studied Nixon’s recordings when he said, “Are we going after their tax returns? You know what I mean? There’s a lot of gold in them thar hills.” Hughes said the ruling appeared to leave intact the law enacted in 1998 that bars presidentially directed audits.
“I do think that the president, vice president, and their employees are still legally prohibited from siccing the IRS on their political opponents as well as from rewarding their political friends by terminating IRS audits of them,” Hughes said in an email. “I just don’t know how the ruling applies to anyone else.”
George Yin, former chief of staff at the Joint Committee on Taxation, said Cabinet-level officials likely would fall under the immunity umbrella, but agency officials, such as IRS employees or the IRS commissioner, may not.
Yin recalled that IRS Commissioner Randolph Thrower resigned after clashing with Nixon. His successor, Johnnie Walters, resigned as IRS commissioner rather than act on the “enemies list,” which contained names of people the White House wanted the IRS to investigate.
The JCT is legally required to report annually on the number of disclosures of tax information and the recipients of those disclosures. The Biden administration has made no requests for personal tax information during its first three years. According to the JCT reports covering 2017 through 2020, the White House made no requests for personal tax information during Trump’s presidency.
After accusations that Trump directed the audit of former FBI Director James Comey and his deputy, Andrew McCabe, despite the legal bar on doing so, the Treasury Inspector General for Tax Administration reported in 2022 that both men were selected for audit randomly.
Yin noted that with immunity, a president could order that the JCT not be informed of tax information disclosures made to the White House.
Investigations
Eric L. Green of Green & Sklarz LLC said he believes the ruling could lead to an uptick in politically motivated investigations from the Justice Department or the IRS Criminal Investigation division.
“The problem with the ruling, whereas before you could point to something and say, ‘That really is not right,’ here it muddies it even more,” said Green, who practices civil and criminal taxpayer representation before the Justice Department Tax Division and the IRS.
Patrick Gaspard, CEO of the Center for American Progress, echoed those sentiments in a social media post. “A president could use this ruling to weaponize DOJ or IRS against political enemies and claim official duty immunity,” he said.
Taxwriters React
Republican lawmakers celebrated the decision while Democrats criticized it for expanding presidential powers.
House Ways and Means Committee Chair Jason Smith, R-Mo., said in a social media post that the ruling “deals a massive blow to the radical Left’s attempt to use the powers of the judiciary to target and take down President Trump.”
House Ways and Means Committee ranking member Richard E. Neal, D-Mass., said, "The former president’s majority on the Supreme Court has dangerously ruled that he is above the law even with his most egregious attack on our democracy.”
‘Not Illegal’
Nixon loomed over reactions to the Supreme Court decision.
“Today, the conservative-captured Roberts Court made law what Former President Nixon once infamously asserted – that when a President commits what would otherwise be a criminal act, it is not illegal,” the American Constitution Society said in a statement.
Ciara Torres-Spelliscy, professor of law at Stetson University, called the ruling a “legal earthquake” that could open the door to a font of possible crimes. “The unitary executive theory taken to its most extreme would allow the president to weaponize the IRS as President Nixon did,” she said.
Historians’ accounts show Nixon may have used an IRS investigation to deter a political opponent from launching a third-party campaign for the presidency, and that the administrations of former Presidents Franklin Roosevelt and John F. Kennedy crossed lines, using audits to make life difficult for political opponents.
Doug Sword contributed to this article.