Author Archives: Andy Grewal

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The DOJ Quietly Made Campaign Finance Violations Easier to Prosecute

by Andy Grewal — Thursday, May 3, 2018

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 provides no defense to criminal liability, in FECA, it does. That is, under 52 U.S.C. 30109(d)(1)(A), criminal violations arise only when someone “knowingly and willfully” violates FECA’s requirements. According to the […]

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Scott Pruitt’s Security Detail–A Tax Problem?

by Andy Grewal — Monday, Apr. 16, 2018

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 political problems.” Hemel & Herzig, “Scott Pruitt’s travel could leave him with a big tax bill,” (April 16, 2018). The authors note that Pruitt’s […]

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The Supreme Court’s Weird Definition of Tax Obstruction

by Andy Grewal — Monday, Apr. 2, 2018

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. Section 7212(a) states, in relevant part, that anyone who “corruptly or by force . . . obstructs or impedes, or endeavors to obstruct or impede […]

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Involuntary Rulemaking?

by Andy Grewal — Tuesday, Jan. 30, 2018

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 interpretations. But sometimes, through statutes like the Freedom of Information Act, an agency may be forced to reveal things that it would otherwise keep out of the public’s eye. For […]

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Can States Game the Republican Tax Bill with the Charitable Contribution Strategy?

by Andy Grewal — Wednesday, Jan. 3, 2018

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 limitation, even when those taxes were personal in nature (that is, when those taxes were not connected to business or investment activities). […]

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Trump’s Obstruction of Justice Defense and the Bribery Counterargument

by Andy Grewal — Thursday, Dec. 14, 2017

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 attempt to criminalize a President’s official acts would raise separation of powers problems and would seem inconsistent with the great legal protection otherwise afforded to […]

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The President’s Absolute Immunity for Unlawfully Firing a Subordinate

by Andy Grewal — Tuesday, Nov. 28, 2017

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 powers under that state’s constitution. The post argued that the U.S. Supreme Court could adopt a similar separation of powers argument if […]

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The Separation of Powers Doctrine May Save Trump from Obstruction Charges

by Andy Grewal — Sunday, Nov. 19, 2017

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 attempt to interfere with the ongoing Russia investigation, and an easy obstruction of justice case against Trump could be made. See, e.g., Samuel W. […]

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How the DOJ Should Fix Its Definition of “Emoluments”

by Andy Grewal — Monday, Oct. 23, 2017

Last week, a federal district court heard oral arguments in CREW v. Trump. No transcript or audio recording of those arguments is currently available, but persons who attended the hearing noted the wide range of issues discussed. (See Josh Blackman’s Blog, Slate, WSJ, and NYT). Because the litigation is at the motion to dismiss stage, […]

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Loss in Anti-Inversion Case Strikes Potentially Major Blow on IRS’s Rulemaking Authority

by Andy Grewal — Saturday, Sept. 30, 2017

In Chamber of Commerce et al. v. IRS et al., the plaintiffs scored a major victory in their challenge to the validity of some “anti-inversion” regulations issued under Section 7874 of the Internal Revenue Code. That statute, generally speaking, limits the tax benefits that might otherwise arise when a U.S. company re-incorporates as a foreign […]

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