One day after Donald Trump ‘settled’ his lawsuit against the IRS in exchange for granting himself a “settlement” of $1.8 Billion from we, the US taxpayers, an additional bit of news dropped this morning:
US justice department ‘forever’ bars IRS from auditing Trump’s past tax returns
The justice department quietly added a provision barring the IRS from auditing Donald Trump’s tax returns on Tuesday, amending a widely criticized agreement that creates a secretive and loosely controlled $1.776bn fund to compensate allies of the president.
The addendum, signed by Todd Blanche, the acting attorney general, says the government is “forever barred” and “precluded” from examining the tax returns of Trump, his family, company and “related companies”. The agreement applies to anything filed before the agreement was reached. It was posted on the justice department website on Tuesday morning, a day after the department announced creation of the fund.
First of all, if the Trump administration has taught us anything, it’s that nothing is “forever”. The next POTUS can come right in and wipe out a century or two of precedence and rule, and that’s that.
I have a more solid way of looking at this. I will apply the actual LAW to it.
For shits and giggles, I chose to use Elon Musk’s Grok to answer a few pointed questions, already knowing the answers:
My first question set the table:
There is equal protection under the law, right?
Yes, equal protection under the law is a foundational principle.
In the United States, it is explicitly guaranteed by the Equal Protection Clause of the Fourteenth Amendment (ratified 1868):
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This binds state and local governments (and, via incorporation, the federal government). It means the government generally cannot treat people differently based on arbitrary or suspect classifications without sufficient justification. The Supreme Court applies different standards of review:
- Strict scrutiny for race, national origin, and fundamental rights (law must serve a compelling interest and be narrowly tailored).
- Intermediate scrutiny for sex/gender.
- Rational basis for most other classifications (e.g., age, wealth, general economic regulations).
Similar principles exist in many other liberal democracies, often rooted in rule of law, equality before the law, or explicit constitutional provisions.
Key limits and realities
- It constrains government, not private individuals or all outcomes. A private employer or person can often discriminate in ways government cannot (subject to statutes like the Civil Rights Act).
- It is not absolute equality of outcome. Laws can classify people (e.g., by age for driving, criminal history, income for taxes) if the classification is rationally related to a legitimate purpose. Disparate impact alone does not always violate it—courts often require discriminatory intent for certain claims.
- Application has evolved through litigation: Brown v. Board of Education (1954) struck down racial segregation; later cases addressed voting rights, interracial marriage (Loving v. Virginia), and other areas. Modern disputes include affirmative action (Students for Fair Admissions v. Harvard, 2023), which limited race-based admissions), gender classifications, and whether certain policies (e.g., in criminal justice or benefits) impermissibly favor or burden groups.
- Enforcement is imperfect. Like any legal principle, it depends on courts, prosecutors, legislatures, and executive agencies. Disparities in arrest rates, sentencing, conviction outcomes, or regulatory treatment exist and are studied; causes debated include policy choices, culture, socioeconomic factors, policing patterns, and yes, bias in some cases. Data from sources like Bureau of Justice Statistics, FBI UCR, or National Crime Victimization Survey show group differences in involvement and outcomes by crime type, but these do not negate the formal legal rule.
The principle reflects a classical liberal ideal: individuals should be treated as equals by the state, judged by relevant conduct and circumstances rather than immutable traits or group membership. In practice, human systems produce uneven results, and reasonable people disagree on whether deviations reflect failures of equal protection, necessary trade-offs, or other variables. The legal framework itself remains one of formal equality under the law.
If Donald Trump is granted the ability to not have his taxes audited or otherwise reviewed, then shouldn’t this extend to every other American taxpayer similarly situated?
Yes, under the Equal Protection Clause, the government cannot arbitrarily grant one taxpayer (even the President) special immunity from normal tax review processes while denying it to similarly situated others. IRS enforcement must follow neutral, non-arbitrary criteria.
IRS Audit Reality
The IRS selects audits primarily through:
- Automated systems (e.g., Discriminant Function System scoring returns for anomalies).
- Random selection.
- Targeted factors like high income, complex returns, large business losses, related entities, EITC claims, or discrepancies with third-party reporting.
Audit rates are low overall (~0.2-0.3% for most returns) but rise significantly with income and complexity: often 1-4%+ for millionaires, much higher for the ultra-wealthy with pass-through entities and hundreds of entities (as with Trump). Lower/middle-income EITC claimants also face relatively high rates due to simpler verification.
Presidents are not “similarly situated” to average taxpayers. Since 1977 (post-Nixon), IRS policy has required mandatory audits of sitting presidents’ and VPs’ returns for transparency and to guard against self-dealing. This is an extra layer of scrutiny, not less. Reports showed delays in Trump’s mandatory audits during his first term, understaffing, and some deferential handling—not a blanket exemption.
Granting any individual (or class) a categorical “no audit” shield unrelated to objective risk factors would raise serious equal protection issues. It would resemble a bill of attainder or special favor, violating the principle that laws (and administrative enforcement) apply generally. Courts apply rational basis review to most tax classifications but stricter scrutiny if they burden fundamental rights or use suspect classes. Selective non-enforcement against one person while enforcing against others invites claims of arbitrary or politically motivated action.
Practical Limits
- IRS has discretion: Not every return gets audited; resources are finite. Prioritizing high-risk/complex returns is constitutional. Broad policy changes (e.g., reduced enforcement on certain shelters or under a certain income) apply class-wide.
- No general right to audit others: Equal protection doesn’t require the government to audit everyone at the same rate—only that distinctions be justified. A president or billionaire with sprawling businesses isn’t “similarly situated” to a W-2 employee.
- Recent context: Proposals or actions to rein in IRS (e.g., staffing cuts, pausing certain initiatives) have been broad policy shifts, not individualized carve-outs. Settlements in specific disputes (like reported Trump IRS matters) follow normal procedures if applied consistently.
In short: If a special, individualized exemption were created for Trump alone (or any single person), it would violate equal protection and invite lawsuits. The remedy is consistent rules for everyone—objective criteria, not personal immunity. Presidents already receive heightened formal review precisely because of their unique position and power over the executive branch that houses the IRS. Arbitrary favoritism undermines the rule of law for all taxpayers.
In this particular case, the US justice department ‘forever’ bars IRS from auditing Trump and / or his family’s tax returns.
So this isn’t just about Trump, it is also his family
Yes, a permanent, individualized bar on IRS audits specifically for Donald Trump and his family would violate the Equal Protection Clause. It would constitute arbitrary, selective non-enforcement favoring a specific person (and his relatives) without a neutral, generally applicable justification tied to objective criteria.
Why this raises serious equal protection problems
- Government cannot grant personal immunities: Tax laws and IRS procedures must apply generally. A “forever” exemption for one family—barring future audits regardless of red flags, complexity, discrepancies, or compliance risks—treats them differently from other similarly situated high-wealth taxpayers with pass-through businesses, real estate holdings, or international entities. Courts would likely view this as lacking a rational basis, especially if it appears politically motivated.
- Family extension makes it worse: Extending this to adult children, spouses, or related entities (e.g., Trump Organization) creates a protected class defined by familial relation to the President. This is not a legitimate classification like “high-income complex returns” or “random selection.” It resembles a bill of attainder in reverse (special favor) or prohibited favoritism. Other wealthy families filing similarly complex returns would have no such shield.
- Contrast with existing policy: Presidents already face mandatory heightened audit scrutiny precisely to avoid conflicts of interest and ensure accountability—not immunity. Post-Nixon reforms strengthened independence of tax administration. A settlement dropping audits as a quid pro quo in the President’s own lawsuit against his executive branch agency would invert this and risk violating statutes against political interference in IRS matters.
Practical and legal realities
IRS has prosecutorial discretion and limited resources, so it cannot (and does not) audit everyone. Broad policy shifts—e.g., deprioritizing certain return types, cutting enforcement staff overall, or focusing on different risk factors—can be lawful if applied neutrally. But a targeted, perpetual carve-out for named individuals and their businesses is the opposite of neutral.
Such an arrangement would almost certainly face lawsuits from watchdog groups, other taxpayers, or Congress asserting:
- Equal protection / due process violations.
- Arbitrary and capricious agency action (Administrative Procedure Act).
- Potential conflicts with tax code provisions on confidentiality and independence.
Courts have scrutinized selective enforcement before (e.g., claims of political targeting under prior administrations). Precedents against viewpoint discrimination or personal favoritism would apply here.
Bottom line
Equal protection requires consistent rules. If the concern is past leaks, over-auditing, or harassment (as in Trump’s lawsuit), remedies should be systemic: stronger confidentiality, better oversight, resource allocation by objective risk—not a lifetime family exemption. A special deal for Trump and his family undermines the rule of law that applies to every other American taxpayer. The principle you started with holds: government cannot pick winners and losers this way.