How Trump's Philosophy of Law 'Avoision' Is Remaking the Political Right | Opinion

On Monday, Manhattan District Attorney Cyrus Vance made clear in federal court filings that he and a New York grand jury are investigating allegations of criminal activity at the Trump Organization "dating back over a decade." The president's argument that a subpoena for eight years of financial records is overbroad, therefore, "rests on the false premise that the grand jury investigation is limited to so-called 'hush-money' payments" in 2016.

In fact, the investigation, which led to the Supreme Court's decision in Trump v. Vance last month rejecting presidential immunity, concerns a lot more than Stormy Daniels. But Vance, whether because of statutes of limitations or for some other reason, still abbreviates the time frame of the alleged corruption in the Trump Organization. It goes back several decades, not just one.

It was the late 1970s. Income taxes and estate taxes were higher than they are today. To pay as little tax as possible, real estate developer Fred Trump and his son Donald started using "dubious tax schemes," according to The New York Times, appearing to fall somewhere between tax avoidance (legal if ethically dubious methods of structuring transactions to avoid tax) and tax evasion (illegal methods of avoiding tax). The objective was an intergenerational wealth transfer from Fred Trump to Donald and, to a lesser extent, his sister, a federal judge, with as little money going to the government as possible.

The Times has described the Trump transactions in excruciating detail, and I will not do so again here. They were on a massive scale, involving tens of millions, and a lawyer for the president has denied any claims of illegality. But in finding suspect ways to avoid paying taxes, the Trump family was hardly alone.

Around the same time, in 1979, a group of conservative free market British academics led by economist Arthur Seldon published a seminal collection of essays titled Tax Avoision: The Economic, Legal and Moral Inter-Relationships Between Avoidance and Evasion. They appear to have coined this phrase for operating at the margins of the law.

Their argument is simple: Tax law has no moral basis. The government's actions, such as setting tax rates too high and imposing unfair retroactive taxes on transactions already completed, are oppressive and unethical. One essay explains:

"The distinction between legal 'avoidance' of tax and illegal 'evasion' has been blurred in recent years by governments that have retrospectively converted avoidance into evasion, in order to punish legal behaviour to which they object. This practice emphasises that tax law has nothing necessarily to do with morals, for moral standards could not apply retrospectively."

The essay even likens efforts by lawmakers to close loopholes retroactively—even if with plenty of advance notice to taxpayers—to the arbitrary decrees of Hitler. In making the shocking comparison, it quotes British historian Alan Bullock: "Hitler never abandoned the cloak of legality. He recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal."

If lawmakers allow "the government itself to override the law, it is hypocrisy to object when citizens evade taxes," the essay concludes. The answer to this problem? "Tax avoision," a term defined as "tax minimisation with elements of both avoidance and evasion practiced by the taxpayer who has difficulty in equating the legal with the moral and the illegal with the immoral."

In other words, don't just use the political mechanisms of representative democracy to change the law. Also do whatever you can to evade the law, exploiting as much as possible the sometimes ambiguous distinction between law avoidance, which is presumably legal, and law evasion, which is illegal. Law avoidance meets law evasion. Law avoision.

This was not a book written by people at the fringes of the far right. It was written by serious scholars with Eton College and Harvard Business School and London School of Economics on their résumés.

Seldon's book—more than any other—makes transparent the link between ultra-conservative economic and political views on the one hand and the ideology of law avoision on the other. Don't just change the law. Avoid and evade the law until you can actually change it, because the law is itself morally wrong and should not apply to you. This is not just a strategy for business success. It's a normative judgment of right and wrong. Ethics avoision.

By the 1990s, American academics had picked up the "avoision" concept and applied it to many areas of the law, although almost never with attribution to the 1979 work of their colleagues across the Atlantic. Citation avoision.

Seldon's phrase became so popular in the United States that it was featured in The Simpsons.

We have no idea whether the Trump family, or more likely Trump lawyers and accountants, read Seldon's book. But by the 1980s, its teachings made up the Trump family Bible. Not only were Trump transactions rife with avoision, according to the New York Times report, but the family transformed politically, increasingly gravitating toward the hostility to the tax code and other laws and regulations, including New York City zoning regulations, that underlies post-World War II conservative politics. When Donald Trump claimed affinity for Democrats, it was most likely because of his desire to ingratiate himself with the Clintons and, of course, the fact that Democrats often were in control of the New York City government, which he lobbied for more loopholes to building ordinances. Political avoision.

Trump's nomination by the Republican Party for president in 2016 saw those two threads of American political thought—celebration of law avoision on the one hand and political hostility to taxation and regulation on the other—come together. Before Trump, the political right emphasized an agenda of changing the law. After Trump, the political right openly applauded maneuvering around the law as well.

And now, in 2020, we see law avoision even in the Department of Justice. The avoision concept perfectly defines the clever tricks used by Attorney General Bill Barr and other administration officials to get around the law in areas going well beyond taxation. For example, if Congress won't appropriate funds to pay for a wall that you said Mexico would pay for, simply declare an "emergency" and appropriate funds from the defense budget and other departments to pay for your wall. Just this week, we learned that Trump has enlisted law professor John Yoo, known for the infamous 2002 torture memos (human rights law avoision), to help find a mechanism for cutting the payroll tax without the consent of Congress. Congress avoision.

The Justice Department teamed up with Trump's private lawyers to conceal from Vance and the New York grand jury the financial documents that might highlight the tax avoision strategies that the Trump family has been using for years. The solicitor general used legal acrobatics to distort Article II of the Constitution to argue not only for presidential immunity from criminal process but also for immunity extending beyond the White House to the Trump Organization. Subpoena avoision.

Fortunately, the Supreme Court in Trump v. Vance said no to this iteration of constitutional law avoision.

President Donald Trump
U.S. President Donald Trump speaks during a news conference in the James Brady Press Briefing Room of the White House on August 4 in Washington, D.C. Drew Angerer/Getty

For Americans—particularly those of us who believe we have a moral obligation to pay our taxes and obey the law—avoision of the rule of law not only by private actors but also by our own government has been deeply disturbing.

Back in 1979, we should have realized that Western political thought already was going in the wrong direction. When a prominent scholarly publication likens the duly enacted law of a representative democracy to the legal regime of Hitler—and by implication analogizes law avoision by wealthy Britons to the heroics of the Royal Air Force in 1940—representative government is headed for trouble.

When American academics picked up Seldon's avoision concept and applied it to everything from blackmail to insider trading to plagiarism to concealment of assets in marital distribution cases to abuse of the bankruptcy code and manipulation of zoning regulations, without a clear message condemning it, we were in even more trouble.

As we learned with the 2008 financial crisis, trouble on Wall Street was soon to follow.

In 2016, the United States invited this trouble wholesale into the executive branch of our government. Now, we have experienced almost four years of it. In November, American voters will decide if we want to keep it. Unless, of course, Trump figures out a way around the election. Democracy avoision.

Richard W. Painter is a professor at the University of Minnesota Law School and was the chief White House ethics lawyer under President George W. Bush. He is the author (with Peter Golenbock) of American Nero: The History of the Destruction of the Rule of Law in America, and Why Trump Is the Worst Offender.

The views expressed in this article are the author's own.