Tax Analysts Blog

Tax Division to the Rescue – If Trump Wants to be Rescued

Posted on Feb 2, 2017

Q: How many psychiatrists does it take to change a light bulb?

A: One – but the light bulb really has to want to change.

One thing I learned in nearly 30 years of practicing law in the Tax Division of the Department of Justice is that attorneys check their politics at the door. Our job was to defend the full and fair administration of the tax laws, period. As a result, liberal democrats and conservative republicans advocated in courts around the country on behalf of the United States of America, without regard to their personal views or the political party that controlled the White House. That has been the prevailing attitude of career attorneys and political appointees in the Tax Division for more than 30 years. And I’d like to think it will remain that way.

Doing the right thing, regardless of personal views, can make for interesting conversations about the government’s litigating position. But having served in Republican and Democratic administrations, from President Reagan to President Obama, I can confidently state that only once did I witness even a hint of (small “p”) politics enter into any decision of consequence.

Sometimes a Tax Division attorney would be faced with advancing a position that violated the Constitution. This dilemma arose during litigation over the constitutionality of the Defense of Marriage Act (DOMA), a Clinton-era law that defined a marriage as a union between one man and one woman (even in states that recognized same-sex marriages). After much research and thoughtful consideration, the attorney general advised the attorneys litigating Windsor v. United States – a tax refund suit that challenged the constitutionality of DOMA as applied to the tax code – that DOJ would no longer defend the law, because he concluded that the statute violated the Constitution.

While the attorney general’s decision made headlines in 2011, what the DOJ attorneys did next did not. They took the principled position articulated by their leader and refused to defend DOMA – despite significant pressure from Congress to do the opposite. The Supreme Court vindicated that decision when it struck down the law in 2013.

Fast forward to 2017, and a series of challenges to – in my view – an illegal executive order barring refugees from the U.S., and preventing entry into the U.S. by individuals (including – initially at least – lawful permanent residents) from seven majority-Muslim countries. When Acting Attorney General Sally Yates, unconvinced that the order was lawful, refused to defend it, President Trump fired her.

That incident, and the appointment of Sen. Jeff Sessions, R.-Ala., as attorney general, have elevated two relatively unknown United States attorneys to prominence in the nascent Trump administration. After Trump fired Yates, he replaced her with Dana Boente, U.S. attorney for the Eastern District of Virginia. Independently, he has nominated Rod Rosenstein, U.S. attorney for Maryland, to be the next deputy attorney general under Sessions.

Both Boente and Rosenstein served as deputy assistant attorneys general in the Tax Division, and both have served under Presidents Bush and Obama. They understand the Tax Division’s culture of enforcing the laws fully and fairly, independent of politics. If they succeed in bringing that approach to the entire department, they just may save Trump and the country from his more destructive instincts. But only if Trump really wants it.

Read Comments (2)

Edmund DantesFeb 6, 2017

The weaponization of the IRS against conservatives was among the worst sins of the Obama administration. We still don't know if Obama ordered it, or if the heavily Democratic staff at the IRS did it on their own initiative—and I don't know which would be worse. Politicizing the IRS has contributed mightily to the breakdown of trust in government. Arguably, it gave us President Trump.

I expect the Trump administration to return to enforcing tax law free of politics. The first step in that process will be to root out all the offenders and their enablers at the IRS from the last administration.

Mike55Feb 7, 2017

The procedural history of Windsor doesn't square with your characterization of the AG's behavior as non-political. Prospective application of Sec. 530B (unprecedented), combined with twice appealing favorable lower court decisions, implies the opposite. Further, calling a 5-4 decision premised upon a different legal theory than the AG's original memo "vindication" is a stretch.

Either way I guess Windsor was intended as an example, not your key point, so moving to the merits. I disagree that the AG can ever serve as an effective buffer against potentially illegal executive actions. The appalling travel ban on aliens from 7 countries serves as case in point: while Sally Yates may have had the very best of intentions, she achieved nothing beyond getting herself fired. In contrast, Judge Robart was able to quickly/efficiently restore order with his temporary restraining order.

The key difference between Yates and Robart is their place in government. The AG serves at the pleasure of the President and has no formal ability to check his/her power. In contrast, judges cannot be unilaterally removed by the President and are specifically vested with the ability to check anyone's power via Article III of the Constitution. The lesson here is that our Founding Father's were actually pretty darn smart, so government actors ought to (1) do their own job and (2) have faith that those in the other two branches will do the same. Hopefully that's the culture/approach our new AG and Deputy AG will bring to the department.

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