The Volokh Conspiracy
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Stop Calling it an Immunity! There's No Immunity!
It's all a figment of Todd Blanche's imagination.
Yesterday's lead story in the NY Times is headlined:
Trump Keeps Immunity from I.R.S., a Victory in a Long-Running Feud
Subhead: "Even as they rebelled against a $1.8 billion fund for President Trump's allies, Republicans looked the other way as his administration granted him potentially lucrative tax protections."
The article notes that plans for the Trump-Blanche $1.776 billion Slush Fund were abandoned due to "Republican anger," but:
"Not so for the sweeping protections from I.R.S. audits that Mr. Blanche also ordered up for Mr. Trump and his family. On that front, Republican reaction has been much more muted, and Mr. Blanche said the audit shield would stay in place. . . . The result is that an apparently unprecedented and enormously valuable public benefit for the president has, so far, flown under the radar in Congress and passed into Mr. Trump's hands without much protest from members of his own party."
It is indeed a shame that the Republicans have not spoken out against this part of the Trump-Blanche deal.
But we should not fall into the trap of talking as though Blanche has already conferred some kind of "immunity" – or an "audit shield" – on Trump. He has not. He's certainly been trying to do so, but because he is not authorized to do so, his attempt is of no force and effect.
Take a close look at the document that purports to give Trump and his family a shield against IRS actions. It is dated (and was publicly posted) on May 19th – the day after the parties in Trump v IRS executed their so-called "Settlement Agreement," which contains no mention of any waiver of IRS claims, or immunity, or "audit shield," or anything remotely similar.
The May 19th document, signed by Todd Blanche, the Acting A.G., states two facts in the first paragraph: that the May 18th Settlement Agreement (1) "has created the Anti-Weaponization Fund," and (2) has "directed the Attorney General to issue an order establishing funding and any other relevant requirements for the Fund."
Both are correct; the May 18th Settlement Agreement, by its express terms, did both of those things.
Then, after declaring that capitalized terms in the May 19th order have the same meaning as in the Settlement Agreement, the entirety of the document reads as follows (I have broken up the single sentence of the waiver provision into its component parts, just for ease of comprehension; any omitted text is marked by ellipses):
The United States
RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES each of the Plaintiffs [i.e., President Trump, his sons, and the Trump Organization] from,
and is hereby FOREVER BARRED AND PRECLUDED from prosecuting or pursuing,
any and all claims . . . or requests for any relief . . . whether presently known or unknown, that . . . have been or could have been asserted by [the IRS] against any of the plaintiffs . . . by reason of, in connection with, or which arise out of …
any matters currently pending or that could be pending (including tax returns filed before the Effective Date) before [the I.R.S.] or other agencies or departments. [Emphases added]
Well!
Where does Todd Blanche get the authorization to grant a waiver like this?! To anyone, let alone to his boss, the President of the United States?
The May 19th document itself is strangely silent about the answer to that question – unusually so, for an AG Order. It implies – though, oddly, and rather suspiciously, it does not come out and actually say – that it represents the "order" contemplated in the May 18 Settlement Agreement. You remember – the one that the AG is directed to issue in order to "establish funding and any other relevant requirements" of the Anti-Weaponization Fund.
Even Blanche must recognize how ridiculous that argument is. A waiver of claims against Trump has absolutely nothing to do with establishing or funding or operating the Anti-Weaponization Fund. And besides -- isn't the Fund being abandoned? So the May 19th document is an Order establishing a Fund that we're not establishing? That's absurd and confusing.
So the May 19 document isn't that order. What is it, then?
It could be part of the settlement terms, which falls within Blanche's inherent authority to conduct litigation on behalf of the United States, and to settle claims where it is in the interest of the United States to do so. The waiver, then, is part of the "settlement terms."
Blanche himself seems confused about that. He is adamant in his testimony before the House Appropriations Committee: the May 19th document is not an "Addendum" to the Settlement Agreement. "It is a separate Attorney General Order." [see the video starting at around 44:30]. But a minute or so later he describes the May 19th document this way:
"There's a settlement. Part of the Settlement includes the [May 19th ] Order. … There's a Settlement the IRS entered into with President Trump and others, his family and his companies. As part of that Settlement, as is customary in IRS Settlements, there's a separate AG Order."
Damned if I can figure out what he is talking about.
If the May 19 waiver order is not part of the Settlement, what is it? If he's not issuing that in order to settle Trump's claims, where does he get the power to waive, forever, claims the United States may possess? It's like the power to issue pardons – except, of course, the Attorney General doesn't have the power to issue pardons. He can say "The United States waives . . ."; he can even put it on DOJ stationery and post it on the DOJ website, and he can sign it as the Acting AG – none of that gives it any legal effect whatsoever unless he has been authorized to take such action on behalf of the United States. If he has not been authorized to take such action, the "order" has the same legal effect as an entry in his private diary.
And if it is part of the "Settlement"? That deal doesn't pass the hoo-haw test. Trump gives up his time-barred claims worth $0.00, in exchange for a $1.776 billion fund under his control PLUS a waiver of all tax or other claims against him, his sons, and his companies?
My guess is that Acting AG Blanche doesn't want to have to defend that deal when he comes before the Senate. Nor does he relish the opportunity to explain to a waiting world why the very significant waiver clause was omitted from the actual Settlement Agreement signed by the parties. Had the parties - and their lawyers, including the DOJ lawyers - just forgotten about it? Slipped their collective mind?
That's laughingstock stuff.
Trump v. IRS wasn't an actual case, because an actual case requires parties who are adverse to one another. There's a docket entry somewhere labeled "Trump v. IRS," of course, but that doesn't make it a valid or viable case. The case can't be "settled," because it never actually existed as a case. Whatever legal effect the document labeled "Settlement Agreement" may have, it doesn't "settle" any case because there was never any case to settle.
So what about this thing that Todd Blanche posted on May 19th? What is it? and What legal effect does it have?
I don't know. It's not part of a case settlement, and if it's not part of a case settlement Blanche has no authority to issue it. So it's nothing. A nullity. It's not an immunity, or a waiver of the IRS's rights, or an audit shield. It is just a figment of Todd Blanche's imagination, and we should treat it and speak of it accordingly.
