The Second Circuit’s Botched “Zone of Interests” Analysis in CREW v. Trump
In CREW v. Trump, some private parties have alleged that President Trump has violated the Constitution’s emoluments clauses through his continued business activities. They believe that the Constitution...
View ArticleThe Solicitor General’s Curious Defense of the Economic Substance Doctrine
The taxpayers in Tucker v. Commissioner recently filed a petition for certiorari with the Supreme Court, asking it to review whether their complex transaction generated benefits under the federal tax...
View ArticleThe President’s Tax Returns
My prior posts have explored some of the constitutional issues related to the battle for President Trump’s tax returns. I’ve now posted a full length law review article, “The President’s Tax Returns,”...
View ArticleCongress Might Already Have Trump’s Taxes
Since the control of the House switched earlier this month, Democrats have reiterated their desire to obtain President Trump’s tax returns. According to a recent Wall Street Journal article, Rep....
View ArticleMichael Cohen, Hush Money, and Trump’s Potential Criminal Liability
The U.S. Attorney for the Southern District of New York (the SDNY) recently filed its sentencing memo in U.S. v. Michael Cohen. That memo has led to substantial speculation over whether the SDNY has...
View ArticleThe Whitaker Appointment Controversy and Some Potential Collateral Damage
Shortly after the 2018 midterm elections, President Donald Trump accepted Attorney General Jeff Sessions’ resignation. Under a default statutory rule, when the office of Attorney General becomes...
View ArticleThe Battle for Trump’s Taxes and the President’s Potential Revenge
The 2018 midterm elections are around the corner, and Democrats are favored to retake the House. Democratic leaders have indicated that, should they regain control, they will perform robust...
View ArticleWhen IRS Guidance Backfires
This week, the IRS tried to clarify how proposed regulations on state tax credit programs apply to Section 162(a) business deductions. But its attempted clarification has created only more problems....
View ArticleThe New SALT Regulations Need a Few More Sprinkles
After Congress passed the Tax Cuts and Jobs Act, several states adopted a charitable contribution strategy to help their residents avoid the new Section 164 deduction limits for state and local tax...
View ArticleCan Montana Force the IRS to Break the Law?
The IRS recently changed the rules on how some tax-exempt organizations must report information related to their “substantial contributors” (that is, those who donate $5,000 or more in a year). This...
View ArticleDistrict Court Adopts Purpose-Based Approach in Emoluments Lawsuit
This week, a federal district court ruled that a lawsuit brought by D.C. and Maryland under the Foreign and Domestic Emoluments Clauses, against President Trump, could proceed. See D.C. v. Trump, 2018...
View ArticleThe Charitable Contribution Strategy: An Ineffective SALT Substitute
In May, the IRS announced that it would issue regulations addressing state efforts to avoid some new deduction limits enacted under the 2017 tax bill. My prior blog post on the states’ strategy is...
View ArticleThe DOJ Quietly Made Campaign Finance Violations Easier to Prosecute
My prior post examined the often-overlooked and extremely strict requirements for establishing criminal violations under the Federal Election Campaign Act (FECA). Although ignorance of the law usually...
View ArticleScott Pruitt’s Security Detail–A Tax Problem?
Over at PostEverything, Professors Daniel Hemel and David Herzig argue that Scott Pruitt, the administrator of the Environmental Protection Agency, “could be in tax trouble on top of his ethical and...
View ArticleThe Supreme Court’s Weird Definition of Tax Obstruction
In Marinello v. United States, 584 U.S. — (2018), the Supreme Court wrestled with whether the federal tax obstruction statute reaches conduct unrelated to an ongoing or contemplated IRS proceeding....
View ArticleInvoluntary Rulemaking?
As the various entries in this Symposium show, agencies enjoy considerable flexibility in determining whether, when, and how to publicly communicate their enforcement priorities and legal...
View ArticleCan States Game the Republican Tax Bill with the Charitable Contribution...
As part of the new tax bill, Congress imposed limits on the Section 164 deduction for state and local taxes paid or accrued. Under prior law, taxpayers could generally deduct those taxes without...
View ArticleTrump’s Obstruction of Justice Defense and the Bribery Counterargument
My prior posts have described some constitutional challenges facing any criminal prosecution of President Trump for an official act, such as the firing of FBI Director James Comey. A legislature’s...
View ArticleThe President’s Absolute Immunity for Unlawfully Firing a Subordinate
My prior post examined a state court case, Ex Parte Parry, which held that the prosecution of the state’s chief executive, Governor Rick Perry, for an official act would violate the separation of...
View ArticleThe Separation of Powers Doctrine May Save Trump from Obstruction Charges
Commentators have floated a number of theories under which President Trump could face criminal consequences for his firing of FBI Director James Comey. Under one view, that firing reflected an unlawful...
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