Why Did Trump Go Birther and Run for President? An IRS Audit in 2010?

A remarkable coincidence emerges when one lines up the timeline of the New York Times’s Trump tax refund bombshell and Trump’s entry into national politics as a Birther. It appears Trump came out as a racist anti-Obama birther and floated the idea of running for president after the Obama IRS audited his 2010 tax refund ($73 million), and at almost the exact same time that the Obama IRS challenged the refund behind the scenes in Congress  in the spring of 2011.

One question is whether Trump’s turn to birtherism in March 2011 was initially an outburst of anger at being audited. Or was it a strategically political move before the news of the audit was public, so that Trump could make it appear that the Obama IRS audit was partisan retribution against a birther enemy? And did his entry into politics and floating the idea of running for president help him to tie up the audit review in Congress so that he could keep the $73 million check?

Running for president would have been a good way to slow down Congress’s review process of large refunds. Aggressively attacking Obama would have been a strategic move to keep the Obama IRS quiet, lest a leak of their audit after March 2011 would make it appear (wrongly) that they were investigating Trump in retribution. If this was Trump’s gambit, it appeared to have worked. And then, perhaps, it unintentionally snowballed over the next six years into Trump becoming a hero to the racist far-right, winning the 2016 nomintion, and winning the White House.

First, here is a timeline/excerpt from the New York Times of Trump’s 2010 refund and IRS audit from the New York Times, and then a timeline of Trump’s emergence as a birther in March 2011:

“[C]onfidential records show that starting in 2010 he claimed, and received, an income tax refund totaling $72.9 million — all the federal income tax he had paid for 2005 through 2008, plus interest.

“The legitimacy of that refund is at the center of the audit battle that he has long been waging, out of public view, with the I.R.S.

“The records that The Times reviewed square with the way Mr. Trump has repeatedly cited, without explanation, an ongoing audit as grounds for refusing to release his tax returns. He alluded to it as recently as July on Fox News, when he told Sean Hannity, “They treat me horribly, the I.R.S., horribly.”

“And while the records do not lay out all the details of the audit, they match his lawyers’ statement during the 2016 campaign that audits of his returns for 2009 and subsequent years remained open, and involved “transactions or activities that were also reported on returns for 2008 and earlier.”

“Mr. Trump harvested that refund bonanza by declaring huge business losses — a total of $1.4 billion from his core businesses for 2008 and 2009 — that tax laws had prevented him from using in prior years.

“…The records reviewed by The Times indicate that Mr. Trump filed for the first of several tranches of his refund several weeks later, in January 2010. That set off what tax professionals refer to as a “quickie refund,” a check processed in 90 days on a tentative basis, pending an audit by the I.R.S.  

“Records show that the results of an audit of Mr. Trump’s refund were sent to the joint committee in the spring of 2011. An agreement was reached in late 2014, the documents indicate, but the audit resumed and grew to include Mr. Trump’s returns for 2010 through 2013.” [END QUOTE]

Now let’s turn to the spring of 2011 in Trump’s political career. The first birther comments I can find are from March 17, 2011, just as he floats the idea of running for president. From Politico on Trump’s appearance on Good Morning America:

Trump seemed to throw his lot in with the discredited rumors that President Obama wasn’t born in America, saying he’s a “little” skeptical of Obama’s citizenship and that every so-called birther who shares the view shouldn’t be so quickly dismissed as an “idiot.” “Growing up no one knew him,” Trump told ABC’s “Good Morning America” during an interview aboard his private plane, Trump Force One. “The whole thing is very strange.” In the wide-ranging interview, Trump said he’s willing to spend up to $600 million on a presidential bid.

CNN then follows with a timeline of Trump’s birtherism escalating in March and April of 2011. On March 23, 2011, on “The View”: “Why doesn’t he show his birth certificate? There’s something on that birth certificate that he doesn’t like.” March 28, 2011, on Fox News: “He’s spent millions of dollars trying to get away from this issue. Millions of dollars in legal fees trying to get away from this issue. And I’ll tell you what, I brought it up, just routinely, and all of a sudden a lot facts are emerging and I’m starting to wonder myself whether or not he was born in this country.”

March 30, 2011, on The Laura Ingraham Show: “He doesn’t have a birth certificate, or if he does, there’s something on that certificate that is very bad for him. Now, somebody told me — and I have no idea if this is bad for him or not, but perhaps it would be — that where it says ‘religion,’ it might have ‘Muslim.’ And if you’re a Muslim, you don’t change your religion, by the way.” April 7, 2011 on NBC’s “Today” show: “I have people that have been studying [Obama’s birth certificate] and they cannot believe what they’re finding … I would like to have him show his birth certificate, and can I be honest with you, I hope he can. Because if he can’t, if he can’t, if he wasn’t born in this country, which is a real possibility … then he has pulled one of the great cons in the history of politics.”

NBC reported that Trump had Michael Cohen working behind the scene with the National Enquirer in 2010 to plan the birther story. Perhaps Trump already knew, after submitting his request for the $73 million refund in January 2010, that an audit was automatic during the next three months (as the NY Times story explains) and he anticipated a political escalation. Or perhaps the Obama IRS had notified Trump that the audit was headed towards a more contested process in Congress.

According to the NY Times, Trump appeared to be financially desperate during the Great Recession of 2008-2009, after massive losses. He was appeared to be in dire need of the $73 million refund, and according to Michael Cohen, Trump knew that the refund was dubious. Cohen, testifying before Congress, “recalled Mr. Trump’s showing him a huge check from the U.S. Treasury some years earlier and musing ‘that he could not believe how stupid the government was for giving someone like him that much money back.’”

Perhaps all of this is just a coincidence.

However, going birther and flirting with a presidential run in 2011 would have been a politically and legally strategic move for a deeply indebted charlatan to hang on to the refund long enough, until another scheme emerged. And perhaps that scheme was a 2016 presidential run and the marketing, media, and foreign support it drew.

Or perhaps it is just as simple as a frightened and financially desperate racist initially having a temper tantrum over an audit by a Black man’s administration. 

Either way, it appears Trump’s fight with the IRS in 2010-2011 may have changed the course of history.

It’s not just Roe. It’s now plausibly a national abortion ban.

We’ve seen a lot of talk about Roe v. Wade.

Isn’t fetal personhood under the 14th Amendment (meaning that fetuses are recognized as legal persons) and a national total abortion ban at least plausible if Trump wins a second term?

The idea is that anti-abortion activists could seek an injunction against all abortion providers because under the U.S. Constitution, all abortions are murder.

I can imagine three votes for it, maybe four for a national late-term ban based on viability, if Amy Coney Barrett is confirmed. (I’d count Thomas and Alito as the second and third vote, and maybe Gorsuch as four). Imagine if Trump gets to replace one or two of the other Justices in a second term, or even if he loses, a Republican president in 2025-2028 could add a fifth vote.

My tribute to Justice Ginsburg

For the Jewish Women’s Archive (and along with my friends Dahlia Lithwick, Nikki Horberg Decter, and Martha Minow, with thanks to Judith Rosenbaum), here:

It may be hard to remember or imagine, but when I was a college student and a law student in the 1990s, Justice Ruth Bader Ginsburg introduced herself to the world as a moderate incrementalist. We were taught how her groundbreaking litigation strategy, for the ACLU’s Women’s Rights Project which she founded in 1972, succeeded precisely because it was so cautious and incrementalist. Her strategy was first to take men’s cases for sex discrimination: men who were denied benefits that were reserved for women as caregivers or widows, for men who had later drinking ages, men who had mandatory jury duty while women’s jury duty was only voluntary. Between 1973 and 1976, she argued six gender discrimination cases before the Supreme Court, and she won five. She savvily attacked gender stereotypes when they benefited women to lay the constitutional groundwork for challenging all sex stereotypes. It was carefully and quietly brilliant, like her.

After President Carter named her to the DC Court of Appeals, she continued to make her mark as a moderate. In law school, we were taught to appreciate her balance, her moderation, her incrementalism, her view of trusting democracy over judicial activism. As a moderate liberal who shied away from the scary label “feminist” in the “Backlash” 1990s, I appreciated Justice Ginsburg.

But then something happened around 2000. First, Bush v. Gore. She called out the hypocrisy of the Court’s ostensible federalists, who ordinarily defer to state governments, but not here: “Were the other members of this court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.” While colleagues wrote they dissented “respectfully,” as Ginsburg usually did, too, she concluded with only: “I dissent.”

Then the Court turned further right over the next decade. The quiet and moderate Justice Ginsburg dissented more, and more forcefully and eloquently. There are many examples, but here is my favorite, in arguably the worst decision of the Roberts Court, striking down a key part of the Voting Rights Act of 1965 based on absurd reasoning and remarkable factual and demographic errors: “The sad irony of today’s decision lies in (the court’s) utter failure to grasp why the (law) has proven effective,” Ginsburg wrote. “Throwing out pre-clearance [review of states’ changes by the Department of Justice] when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

The Roberts Court has systematically undermined voting rights, and Ginsburg was right: We are now in a storm of anti-democratic attacks. And it was in this storm that the quiet moderate Justice Ginsburg became the Notorious RBG. I did not always agree with her, but I changed from appreciating her to loving her as a hero. I look back at how I—and many of us—changed along with her, from patient moderates in the 1980s and 1990s to more outspoken, fierce, dissenters and resisters today. In the decades RBG became a feminist icon, I became more proudly a self-identified feminist. On some level, there was a connection. RBG dissented for all of us when she had a voice that many of us felt we had been losing.

The last thing I’ll share is a defense of her retirement timing. Many liberals have criticized her decision not to retire under President Obama while the Democrats had a narrow Senate majority. First, I’d note that few people criticized men on the Court the same age for not retiring, even though women have a longer life expectancy. Second, it’s easy to forget the politics of 2012–2014. President Obama was running for re-election as a cautious moderate, adding names to his judicial shortlist from conservative states and with no record on women’s rights. Ginsburg knew how to recognize such moderation from her own life, and she would have been understandably cautious. The Democrats’ Senate majority remained narrow in 2013–14, and it was apparent that the decisive conservative Democrats wanted a moderate without a clear record on Roe. If Ginsburg cared more about her life’s work, her passion for women’s rights more than simply getting a “Democrat” on the Court, can she really be blamed? But finally, the critique is unfair in a time of partisanship. Yes, conservative Justices have been better, and luckier, at timing their retirements in obviously partisan ways, eroding the legitimacy of the Supreme Court.

One can argue that if she were more partisan, she should have retired earlier. But we should at least take a step back, be as generous to her as she was to all of us with her life of public service, and appreciate that she was more than just a partisan, that she believed her life, the law, and perhaps judicial legitimacy was something bigger than party politics. Maybe she was right, maybe she was wrong, but she was Notoriously, gloriously independent. Thank you, Ruth.

A Voting+Census Bureaucratic Problem: Yet Another Reason to Vote EARLY IN-PERSON

I voted early in-person for our primary, and I need to share a surprising bureaucratic problem that confirmed why voting EARLY IN-PERSON is worth the risks this year.

I have voted in every primary and general election, sometimes early, sometimes absentee when I have worked as a poll watcher. When I asked for my ballot, I discovered I was officially an “inactive voter” because I “had not completed the census.”
I defintely filed my federal census online last spring, so I was confused, but the volunteer poll worker couldn’t explain what was going on, and in Covid-19, I was not looking for a long in-person conversation. I just immediately filled out additional paperwork so I could vote.

It turns out that this “inactive” designation was not because of the federal census, but a local census for household/address confirmation, and a state rule that localities can declare you ineligible to vote until you complete it. If I had tried to vote by mail, I suspect my application or my ballot would have been rejected. I have no idea how I or anyone in my position could have fixed this in time. It turns out that many local govts have this rule, but this hasn’t been on anyone’s radar as a widespread problem for mail/absentee voting.

The notion that I was officially an ineligible “inactive voter” would be funny if it weren’t scary.
I am a hyperactive voter.
An obsessive-compulsive voter. I am certain I completed the local census, and almost certain that I put it in the mail on time. But I don’t know anyone who knew that this survey could make you ineligible to vote.

The triple-whammy of Trump sabotaging of the mail, underfunding of the state governments during an economic crisis, and this being a census year could mean disaster.
Vote EARLY IN-Person!
Please share this post with more detail.

Massachusetts Primary, Sept 1: Mermell and Markey

Voting in the Mass primary for 4th cong. district to replace Joe Kennedy? Many of us want to make sure recently-Republican Auchincloss doesn’t get the nomination, but the rest of the field is divided among a half-dozen solid candidates.

Recent polling and endorsements show momentum towards Jesse Mermell. A Data for Progress poll last week, w/o leaners:

Auchincloss 12
Mermell 12
Grossman 8
Linos 8
Leckey 7
Khazei 5

Plus endorsements for Mermell from Ayanna Pressley, Maura Healey. I really like Linos, Leckey, and Khazei, too, but Auchincloss should not become a Congressman by switching parties and taking advantage of divided field with a 20% plurality.

Also: Vote Markey.

Markey is an outstanding Senator. There was no reason to challenge him except for dynastic entitlement. My thread here on Kennedy’s answers in 2018 on the war on drugs, defending the criminalization of marijuana so that police have a pretext to search cars. It’s the older candidate who is more in tune with 2020, while the younger candidate is relying on 1960s nostalgia and a dynastic name.

Reform police liability through state tort law

My colleagues Ben Zipursky and Bennett Capers, together with John Goldberg, have an important op-ed in today’s Washington Post:

“How to reform police liability without involving McConnell or Trump”

“Police officers enjoy almost complete immunity from civil suits in federal court. They can shoot someone, taser someone, choke someone, or press their knee into someone’s neck until they can’t breathe. They can brutalize peaceful protesters. And yet, in large part because of the court-made rule of qualified immunity, officers rarely face liability.

“The calls for ending qualified immunity have not gone unheard. The House of Representatives passed a bill that would eliminate it and enable victims to obtain remedies for violations of their civil rights. But Senate Majority Leader Mitch McConnell (R-Ky.) and the Senate have balked at this change, as has President Trump. Likewise, the Supreme Court recently declined to revisit the subject.

“The good news is that changing federal law is not the only way to erase the grave accountability deficit for unlawful police violence. There’s an alternative hiding in plain sight: state law.”

See the rest here.

My Torts Syllabus, Fall 2020

As promised, my Torts syllabus from Goldberg, Sebok, Zipursky’s casebook:

Email: jshugerman@law.fordham.edu

Overview: Tort law, to put it simply, concerns the legal protection through civil proceedings to protect bodily autonomy, emotional integrity, and property. It is the law of personal injuries and accidents, but it is also the law that protects the broadest range of private rights and public goods. We begin with intentional torts as an introduction to the subject. Then we proceed step by step through the elements of a tort: duty, breach, causation, damage, and defenses. We will focus on the purposes of the tort system, including corrective or moral justice (and civil recourse), deterrence, compensation, and social justice, as well as secondary factors like judicial economy/institutional efficiencies.

The course focuses chiefly on the law of negligence and strict liability. We conclude by exploring alternatives to the tort system, such as regulation, workers compensation, insurance, and no-fault programs.

Goals of the class:

  1. Learn how to read a case for a) the key facts, b) the procedural posture, c) the legal question or issue, d) the rule, and e) the reasoning and analysis.
  2. Learn common law reasoning, focusing on the role of precedent and synthesis.
  3. Learn to engage in legal argument. What are the arguments on both sides?
  4. Understand fundamental concepts in torts that arise frequently in many areas of law, such as causation, rules and standards, strict liability, the harm within the risk, judicial economy, private attorney general
  5. Learn the structure and principles of tort law, including the purposes of corrective justice, deterrence/efficiency, compensation, loss spreading, and social redress.  These topics will introduce a variety of perspectives on American law: doctrine, policy, politics, history, theory, economics, and psychology.

[For rest of syllabus, click on “page 2” below]

Vote EARLY IN-PERSON, not MAIL.

If you use a “mail” or “absentee” ballot, even if you drop it off directly at the designated county drop-box or polling center, it most likely will not get counted on Election Day, and it can easily be challenged and delayed and even rejected on a technicality. If you can, please vote EARLY IN-PERSON with a regular ballot, not a mail-in ballot that depends on envelopes and signatures.

A must-read article by Greg Sargent in the Washington Post on how Trump can slow down mail service to steal the election. He found that the key swing states have a rule: mail/absentee ballots that arrive late (even if they are post-marked before the election) will not be counted.

My long-standing concern is that each mailed ballot is its own hanging chad, its own built-in legal delay. A mailed ballot can be challenged based on postmark, arrival, signature, etc. Lawyers can use these challenges in bad faith (like they did in Florida 2000) to grind any count to a halt. That was going to be the Republican strategy now that we all know that mailed ballots are going to be much more heavily Democratic, leaving Election Day votes more heavily Republican (and counted immediately). If you can grind the vote count down to a halt, states can miss the Electoral College deadlines, no candidate gets to 270 votes as states are blocked from certifying their Electors, and the election can get thrown to the House (like in Jefferson v. Burr in 1800). Under both the original Constitution and the 12th Amendment, the House vote is by state delegation, not by number of representatives. [Non-partisan factual observation: The Republicans will have at least 26 state delegations in 2021, because there are more Montanas and Mississippis than Californias and New Yorks.]

I hate to say this, but I think it is time to shift our focus from mail/absentee voting…

to EARLY IN-PERSON voting.
Obviously, in-person voting has Covid-19 risks.
But:
*No long lines on election day.
*No deliberate or accidental mail delays.
*No bad-faith legal challenges on postmarks/signatures to slow down vote count.

[Update Aug. 17: Jamelle Bouie in his NY Times op-ed adds another reason: Early in-person votes will be counted on election day, and election night momentum is crucial. It is important for public opinion to have more votes counted on election night. Even if you’re not in a swing state, it is important to have more votes counted on election night. The media are bad at setting expectations.]

The bottom line is that the swing states (including IA and TX but not NH) all have some kind of early voting. PA is county-by-county, but counties that offer a mail option also provide direct drop-off at county office (these mail votes still need signatures and are thus vulnerable to legal tactics, but at least the drop-off avoids any mail sabotage).

[Update: I’ve been asked to explain my concerns about legal delays of mail and absentee ballots a bit more clearly. Let’s start with Florida 2000: Florida used hold-punched ballots, and any ballot that wasn’t fully punched (generally because of old machinery or uncleaned machines) had a “hanging chad” piece of paper. In the recount, any hole-punched ballot with a “hanging chad” could be challenged and scrutinized for “voter intent.” Even ballots that were mostly punched for Bush or Gore could be checked for several minutes. The Bush campaign had the lead and had a majority of states in the House, so they had a strategy to delay. In 2020, there may be even more of a strategy to delay and run out the clock on the electoral college.

EVERY mailed vote is a hanging chad, because every mailed vote has an envelope with signatures on it. Lawyers can challenge every signature, meaning a delay of several minutes or longer for each mailed vote. Now what if we’re talking about Pennsylvania, a state with 6 million votes, and 3 million mailed ballots, 3 million signatures, 3 million postmarks. Imagine counting 3 million hanging chads. This is a recipe for running out the clock on Pennsylvania’s votes and the next thing you know, no one has 270 electoral votes, and arguably the House will choose. If lawyers challenge enough states to stop their votes, the candidate who actually lost the real vote might have a temporary lead by blocking his opponent’s states from certifying. By the time January rolls around, the loser may have more electors due to this legal strategy: a “rump” electoral college lead by legal delay. Guess what the Supreme Court would say? “Political question,” let the House decide. [And non-partisan FYI, Republicans are likely to have a 26-24 lead among House state delegations].

The following is a chart of states have “early in-person” voting (ballots that are automatically counted on election day) and “early absentee/mail drop-off” (which is a second-best because it avoids needing to use the USPS, but those ballots are often not counted on election day, as determined county-by-county, and have signatures that can be challenged):

Here are resources to check how you can vote early in-person (or by mail/absentee):

https://www.vote.org/early-voting-calendar/

https://www.usvotefoundation.org/vote/eoddomestic.htm

https://projects.fivethirtyeight.com/how-to-vote-2020/

https://protecttheresults.com

Bonus states: Massachusetts: Likely early voting Oct. 23 to Oct. 30. For Sept 1st primary, the early voting is Aug. 22-28. Find locations by town here.

New YorkStarts 10 days before the election.Ends 2 days before the election.

Spread the word: VOTE EARLY IN-PERSON, NOT MAIL.

We are contesting Trump’s commutation of Stone’s sentence.

My colleague, friend, and co-author Ethan Leib and I are working with Free Speech for People to contest Roger Stone’s commutation in the trial court. Ron Fein, John Bonifaz, and Ben Clements filed a motion yesterday before Judge Amy Berman Jackson. We argue that the Constitution limits the pardon power to uses that are in the public interest, not primarily for self-interest, self-dealing, or self-protection.

When the Framers added the phrase “faithful execution” to the Constitution, for the president to ‘take Care that the laws be faithfully executed’ and for the presidential oath, they were drawing on a long English tradition of this phrase signifying limited powers on behalf of the public interest, and rejecting the unlimited prerogatives of kings. These republican limits are similar to fiduciary duties against self-dealing. Thus, pardons and commutations that are in self-interest and against the public interest are unfaithful execution of the office and are constitutionally invalid.

The Free Speech for People public statement is here.

UPDATE July 31: You win some, you lose some… Motion denied, but I’ll take solace in Judge Jackson calling us “well-intentioned law professor[s].”

Our articles supporting this argument are:

Andrew Kent, Ethan Leib, and Jed Shugerman, “Faithful Execution and Article II,” 132 Harv. L. Rev. 2111 (2019)

Leib and Shugerman, “Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation,” 17 Georgetown Journal of Law & Public Policy 463 (2019)

Shugerman and Leib, “This overlooked part of the Constitution could stop Trump from abusing his pardon power,” Washington Post, March 14, 2018