Trump IRS ‘Slush Fund’ Will Expose DOJ Lawyers to Fraud Charges

News that the Justice Department has arranged to create a $1.8 billion settlement fund to benefit President Donald Trump’s allies with taxpayers’ money has understandably provoked widespread outrage, prompting the Treasury Department’s general counsel to quit immediately after the deal was announced. But this plan may prove “too clever by half” for the officials who contrived it.

While Trump may merely be setting the stage for another impeachment, should Democrats retake the House of Representatives in November, he cannot face any criminal consequences for the scheme, thanks to the US Supreme Court’s decision to grant him absolute immunity for his acts in office. But DOJ lawyers should not be sanguine about escaping responsibility. In due course, there are several ways in which they may be called to account.

Start with the proposition that the settlement of Trump’s original claim for $10 billion is a sham. The demand is related to the stealing and leak of his and other wealthy Americans’ tax records by an IRS contractor during Trump’s first term. The suit itself was almost certainly barred by the statute of limitations. The judge in Florida hearing the case had expressed strong doubt that there was any legal basis for the claim, much less for the fantastic size of the damages demanded.

As the judge also noted, the Trump Justice Department faced a palpable “conflict of interest” in purporting to represent the people of the US in a claim by the president. In addition, she expressed grave doubt that this lawsuit constituted a real “case or controversy” within the jurisdiction of the federal courts, because Trump was essentially suing himself. The recent settlement confirmed that Trump’s unprecedented control over DOJ, which nominally was obliged to defend the American taxpayers against such a mind-boggling claim, meant that he could control the adjudication of the claim.

Indeed, the Trump DOJ agreed with the president’s personal lawyers to create the settlement just days before they were to report to the court whether there were any legitimate grounds to proceed with the lawsuit.

It is reasonable to infer that this is a classic example of a “collusive settlement” that has as its purpose to bilk the American taxpayer in order to generate a slush fund for the president (acting through agents to be appointed by his Acting Attorney General) to ladle out money to his supporters, including convicted and pardoned Jan. 6 rioters, who supposedly were the victims of “weaponization” by the Biden administration.

Collusive settlements are a species of fraud. Most typically, they involve self-interested deals in which a person with insurance agrees to settle a bogus claim or commits to an unreasonable payment in the hope of foisting the costs on an insurance company.

Courts find settlements to be fraudulently collusive when, for example, there is no real effort to defend against liability or to contest the exaggerated claim for damages. Fraud is found when, for example, the person presented with a claim was “willing to lie down and accept a judgment of any amount against it so long as it would not be on the hook to satisfy the judgment” and a “reasonable party would not be indifferent to the amount of a judgment entered against it were its own money on the line.” A key ingredient in finding collusive fraud is an agreement to pay an amount not “in any way tethered to reality”

A purported settlement where the agreed payment is “unreasonable” and both sides “had a joint interest in maximizing the amount recovered—evinces collusion between the parties.”

The DOJ IRS settlement precisely parallels those hallmarks of collusive fraud, leaving the taxpayers to pay an exorbitant amount in the face of a highly dubious claim.

Any participants in the scheme, including the DOJ officials who designed it or who will actually implement it, may have to confront–in due course–the general federal fraud statute, which makes it a felony to conspire to defraud the US. In addition, the federal criminal law exposes to punishment anyone, including federal officials, who “embezzles, steals, purloins, or knowingly converts to his use or the use of another” any federal funds.

Moreover, anyone who receives the bounty from this settlement scheme should not rest easy. Receipt of stolen federal property is a crime where, as here, a reasonable observer would know that the funds are being illegally siphoned from the federal treasury. In any event, recipients of stolen property are deemed to hold it in trust for the real owner–the American taxpayers–even if they are ignorant of the illegality of the scheme. In addition, the federal False Claims Act allows private citizens to sue anyone who collects money based on a false claim — such as having been the “victim” of “weaponization”—and to recover penalty damages from the recipient of ill-gotten federal money.

Of course, there is no chance that the current administration would allow investigation or prosecution of this unseemly cash-grab. But the five-year statute of limitations will continue to run into 2031, well within the term of the next president.

Perhaps Trump will try to forestall such accountability by issuing broad preemptive pardons. He already has shown a willingness to issue pardons to numerous fraudsters who were, or became, his supporters, and he already has spared over a thousand Jan. 6 rioters from responsibility for their crimes.

One consequence for DOJ officials, however, lies beyond the president’s ability to control–despite the department’s desperate effort to insulate its lawyers from professional responsibility for unethical conduct. The codes of professional responsibility in force in one form or another in every jurisdiction make it a disciplinary offense for a lawyer to engage “in conduct involving dishonesty, fraud, deceit or misrepresentation” or to facilitate such conduct. These principles apply to government lawyers, including those at DOJ. Several lawyers who promoted Trump’s causes either in private practice or in DOJ already have faced professional sanction, including suspension or cancellation of their right to practice law.

Not surprisingly, a Justice Department that seems intent on violating the traditional norms has sought to insulate its agents from accountability, first proposing a rule—directly contrary to a congressional statute—that would attempt to displace state bar oversight, and more recently suing District of Columbia court and bar officials to block them from investigating miscreant DOJ lawyers who are members of the local bar. There is little chance that these aggressive efforts to license unethical conduct will survive.

As every lawyer should understand, a lawyer may not use professional skill and talent to create a scheme to defraud. The Justice Department lawyers involved in constructing the bogus “settlement” may have to learn this lesson the hard way.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Philip Allen Lacovara is the former deputy solicitor general of the US, was counsel to the Watergate special prosecutor, and president of the District of Columbia Bar.

Interested in writing? Review our author guidelines, and submit pitches to Insights@bloombergindustry.com.