Miscellaneous On the Current DOJ and Trump v. IRS (8/5/26)

I thought I would offer some miscellaneous links to potential items of interest for DOJ Tax Division Alumni:

1. Article with co-author from Tax Division: John Koskinen, Kathryn Keneally, Kathryn Keneally, & Gilbert Rothenberg, Giving the President Tax Immunity Would Be Illegal and Unjust (BloombergTax 8/5/216), here.

2. A more uplifting story of a DOJ Tax Alumnus, Justice Robert H. Jackson (former AAG Tax Division and other high level posts before becoming a Justice), was presented in Michael R. Dreeben, Robert Jackson's The Federal Prosecutor Revisited, 139 Harv. L. Rev. Forum 173 (2026), here. Mr. Drebeen has no service in the Tax Division, although he was a long-time Assistant Solicitor General and during some of the time Deputy Solicitor General. Mr. Drebeen “revisits” then Attorney General Jackson’s iconic address on the role of the federal prosecutor. The original Jackson address is here. The Jackson address was always highly aspirational for me even though I was not a “federal prosecutor.” I just for the most part represented the Government (U.S. or Commissioner) in civil tax cases, but I still thought the tone of the address spoke to my service. The original Jackson address is  particularly timely in these days when so many DOJ norms are being disrespected, sometimes with conduct that violates the aspirations Justice Jackson set.

3. I return to the theme of illegality in the “relief” provided to Trump and others in the Trump Circle, which is the subject of Gil Rothenberg’s article in ¶ 1 above. I just finished my 2026 Federal Tax Procedure Book Student and Practitioner Editions, see my Blog page titled Federal Tax Procedure Book (2026 Editions) (Federal Tax Procedure Blog 8/4/26), here. In those Editions, I conclude with a summary of Trump v. IRS that I am sure all readers of this blog are already familiar with that summary, so I just post here my conclusion in the book after the summary:

Exercise for Students: Readers of Chapter Six discussing tax and tax-related crimes should be able easily to spot several tax and tax-related crimes that this conduct might implicate, particularly the ubiquitous defraud conspiracy. One possibility is that anyone participating materially in the audit immunity could be an affirmative act of evasion with respect to the taxes covered or an overt act of conspiracy (offense or defraud). In theory, if that were viable, all of the key players in this drama stand exposed to criminal prosecution. Of course, the prosecutions, if any, will have to be brought by DOJ which Trump can prevent while he is President but can then be brought in the next Administration unless Trump gives sweeping pardons to all who were involved. (I suspect and have read that those actors are counting on such pardons.) One final question worth asking is whether Trump’s control of DOJ and IRS could implicate some conduct for which the Supreme Court has given full or qualified immunity in Trump v. United States, 603 U.S. 593 (2024).

Another Exercise for Students: Tax procedure students should think about the settlement authorities discussed earlier in this text. Thus, generally, only the IRS has settlement authority for cases that it has not yet referred to DOJ. DOJ has settlement authority only for cases that the IRS referred. Facially, it appeared in Trump v. IRS that the IRS had only transferred authority to DOJ over the § 7431 wrongful disclosure suit. There is no indication that the IRS referred all of the matters sweepingly released in the Release Order to DOJ, and there is no indication that the IRS “settled” those claims.

Concluding thoughts: If nothing else, Trump v. IRS and its resulting commotions will occupy tax procedure and tax crimes enthusiasts for a long time.

4. JAT Comment: I would like to believe that had Blanche attempted this gambit and tried to get DOJ Tax leaders to sign off, he would have failed on the latter. I am aware of no reports that DOJ leadership moving to the Civil Division and the National Fraud Enforcement Division (through the Criminal Division) signed off on this gambit. At least, I hope they didn’t.