Could the District Court Invite or Appoint an Amicus to Present the U.S. Position in Trump v. IRS? (2/7/26)

Yesterday, I posted a blog on the Amici Brief filed in Trump v. IRS, (S.D. Fla. No. 26-cv-20609), CL Docket sheet here. On Amici Brief in Trump and Related Parties Suit for Damages from Unauthorized Inspections and Disclosures of Return Information by Employee of IRS Contractor (2/6/26), here. Basically,  a principal theme of the Amici Brief is that the Trump plaintiffs are suing the Government where Trump is also the Government “decider” (to echo George Bush’s claim). That presents some major issues, some of which are discussed in the Amici Brief and I address in the prior blog.

Today, I wanted to expand on an issue that I began considering after posting yesterday’s blog: 

Can the district court sua sponte or at the urging of some Amici invite or appoint an Amicus to represent the United States if the United States at Trump’s direction aligns itself with the Trump plaintiffs?

There is precedent that might permit the district court to invite or appoint an Amicus to participate in the proceeding to represent the United States’ interest where the parties are aligned (thus perhaps not creating a case or controversy). The precedent is Bob Jones University v. United States, 461 U.S. 574 (1983), GS here. In that case, the IRS denied tax-exempt status to two education organizations—Bob Jones and Goldsboro Christian Schools--which allegedly had a "sincerely held" religious belief that their God required them to racially discriminate. The Fourth Circuit sustained the IRS position. In the Supreme Court, the White House directed the SG’s office to disavow the IRS position that had prevailed in the Fourth Circuit. There is intrigue and high drama about the White House doing that, but I offer more on that below in order to stay on track for the main body of this posting.  Perceiving that, at that point, the parties were aligned and no one was arguing in support of the Fourth Circuit opinion, the Supreme Court invited William T. Coleman, a prominent D.C. lawyer, to brief and argue the case as Amicus Curiae;  the opinion in the case describes Coleman as follows: “William T. Coleman, Jr., pro se, by invitation of the Court, 456 U. S. 922, argued the cause as amicus curiae urging affirmance.” (As in many Supreme Court cases, there were other Amici briefs filed, but Coleman’s was likely the one that the Justices paid most attention to; I have sometimes expressed doubt as to the efficacy of Amici Briefs that often flood the Supreme Court in hot button issue cases where the Amici often just give the same or slight variations of the arguments made by the parties or Amici, often with slightly different wording; Coleman’s was different because the Supreme Court respected him andinvited it.) In the merits decision, the Supreme Court affirmed the Fourth Circuit, thus rejecting the White House’s forced position that put the parties in alignment.

The bottom-line, where in Trump v.  IRS the Trump-related parties and the Government (at the direction of Trump) have interests that are or may be aligned, the district court might invite or appoint an Amicus to assist the court in doing justice in the case. The court could do that sua sponte as the Supreme Court did in Bob Jones or it could do it on motion from Amici.

Of course, the Trump-related parties and even some fellow travelers or purists not wanting an Amici to influence the outcome of the case might insist that the “party presentation” principle should prevent consideration of such Amici participation to assert arguments not asserted by the parties. I won’t write further on the party presentation principle (sometimes called a doctrine or rule) but in broad overview it says that courts should not address issues not raised by the parties. There is substantial nuance to the principle, however a good article addressing a recent Supreme Court kerfuffle generated by Justice Alito's rant in dissent in  Trump v.  Illinois, 607 U. S. ____ (2025), SC here and GS here. See Samuel Bray, The Inexorable Command of Party Presentation? (Divided Argument 12/26/25) here. I don’t think party presentation principle is an “inexorable” command. This Trump litigation might be a good opportunity, similar to Bob Jones, to avoid principle.

Of course, there is one potential barrier to an Amicus at the trial level. To litigate effectively such an Amicus must have access to tax return information otherwise prohibited generally from disclosure by § 6103, here. A weighty tome could be written on that, but I just raise the question here as to whether § 6103(h)(4), titled “Disclosure in judicial and administrative tax proceedings” might be read to permit such access for the Amicus. Section 6103(h)(4) has some alternative bases for disclosure which might be read as authority in Trump v. IRS for an Amicus to have access. (That probably would require Supreme Court approval of the interpretation, but the nice thing about that is that the Trump v. IRS would be stayed at the trial level pending Court of Appeals and ultimately Supreme Court review which may be finalized only after Trump is no longer President and a more objective President could then make a non-collusive decision whether to defend the litigation).

And,  Trump could just pre-empt the issue by ordering the Government to pay him the damages he claims.

Finally, I think a motion by Amici to appoint an Amicus should be filed at the earliest after the Government files the answer in Trump v. IRS which may prove that the parties' interests are aligned in whole or part.

 JAT Side Comments not directly relevant to the subject of this Blog:

1. Intrigue and High Drama in Bob Jones and Goldsboro Christian Schools.

The Bob Jones and Goldsboro had intrigue and high drama involving the White House’s direction to abandon the position that prevailed in the Fourth Circuit. I discuss that at pp. 119-121 in my Federal Tax Procedure Book (Practitioner Ed. 2025), and offer that excerpt here. In summary, one prominent SG Office attorney, Larry Wallace, refused to sign the Government’s merit brief without including a footnote saying, in effect, that he disagreed with the position asserted in the merits brief. Larry Wallace was a mensch. See the linked excerpt for more detail.

2. Personal War Story Bob Jones and Goldsboro Christian Schools.

While with DOJ Tax, I was assigned to handle the trial-level proceedings in Bob Jones (South Carolina case) and Goldsboro Christian Schools (North Carolina case). I handled Goldsboro Christian Schools to summary judgment for the Government upholding the IRS position. Goldsboro Christian Schools, Inc. v. United States, 436 F.Supp. 1314 (ED NC1977), here. I handled Bob Jones trial level proceedings until I left DOJ Tax in  1977, after which the district court held for Bob Jones. Bob Jones University v. United States, 468 F. Supp. 890 (DC SC 1978), here. After that, I was just an interested observer as the cases worked their way to the Supreme Court. In my trial level work, I was instructed to not question the sincerity of the claimed religious belief that, the taxpayers claimed, their God required them to racially discriminate. (I felt that, on the  basis of the depositions I took, a position could be taken that the claimed religious belief was not a sincerely held religious belief but just a mask for racial discrimination; but I could not and did not go there.)

I add a cheeky conment that it is interesting that their God changed his mind about requiring  racial discrimination after tax-exemption and other Government benefits were denied.

I have an interesting anecdote involving these cases after I left DOJ Tax in March 1977. One of the counsel for Bob Jones called me at the private law firm in Houston and asked me to consider joining the team representing Bob Jones to defeat the Government position. I declined that request, which I thought was inappropriate and, of course, would have been unethical for me to agree to do. (This is one of those episodes in life that I can remember clearly, from where I was sitting in my office when I took the phone call.)