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)

I assume that most readers of this blog will already have seen news about Trump’s suit against the IRS for “damages” arising from the disclosure of his tax return information by an employee of an IRS contractor who was subsequently criminally convicted by plea agreement and sentenced to five years’ incarceration. E.g., Trump sues IRS and Treasury for $10 billion over leaked tax information  (NPR 1/30/26), here. The suit is titled Trump v. IRS (S.D. Fla. No. 26-cv-20609), CL Docket sheet here. (Reminder: Access to the Court Listener docket sheet is free and will have links to the documents provided that some CL member has downloaded them from PACER.)

The key documents to date are

• the complaint (CL here) and
• a new Amici Curiae Motion for Leave to File Brief as Amici Curiae by Former Government Officials and Public Interest Organizations, here. The interests of the Amici are (Br 1-2, footnote omitted):

          Amici are four former government officials with combined decades of experience in federal tax law, each of whom joins this brief only in their personal capacity, and two public-interest organizations. They have sought leave to submit this brief to aid the Court in its management of this important case.

          John Koskinen served as the 48th Commissioner of the Internal Revenue Service. He was confirmed to the position by the Senate in 2013, and he served in the position until 2017. Prior to his service as IRS Commissioner, he served in a number of positions in the public and private sector, including as the non-executive chairman of the Federal Home Loan Mortgage Corporation (Freddie Mac) from 2008 to 2012.

          Kathryn Keneally served as the Assistant Attorney General for the U.S. Department of Justice’s Tax Division. She was confirmed to the position by the Senate in 2012, and she served in the position until 2014. Prior to her service in the Department of Justice, she practiced tax law in private practice for thirty years and served as chair of the American Bar Association’s Section of Taxation’s Committees on Civil and Criminal Tax Penalties and Standards of Tax Practice.

          Nina Olson served as the National Taxpayer Advocate from 2001 to 2019. In that role, she led the Taxpayer Advocate Service, an independent organization within the Internal Revenue Service. Prior to serving in that role, she had over two decades of experience representing individual taxpayers at all levels of income.

          Gilbert Rothenberg served as the Chief of the U.S. Department of Justice, Tax Division, Appellate Section. He joined the Department as a line attorney in the Appellate Section in 1975 and served in the Section until his retirement in 2019.

          Common Cause is a nonpartisan, grassroots organization dedicated to upholding the core values of American democracy by working to create open, honest, and accountable government that serves the public interest. Common Cause has over 1.5 million members nationwide and local organizations in 23 states.

          Project On Government Oversight (POGO) is a nonpartisan, independent watchdog that investigates, exposes, and champions reforms on systemic corruption, abuse of power, and waste. [*2] POGO envisions a federal government that is effective and accountable—governed by just laws, operating with integrity, and committed to serving the public. Government ethics and public trust in the federal government are at the heart of POGO’s mission.

I will not write on the merits of the Complaint. I will editorially comment that, in my opinion, this is just another Trump attempt to monetize Trump’s presidency which has already unlocked mega-millions for Trump and his family (not to mention his “friends,” such as pardon attorneys close to him). Rather, I address in this blog the Amici Brief.

The judge on the case is Kathleen M. Williams, an Obama appointee. See Wikipedia here. Pretrial responsibilities have been assigned to Magistrate Judge Enjolique A. Lett. I could find no current information on her in a quick Google search; I did find, for example, that Judge Roy K. Altman assigned her to handle pretrial non-dispositive matters in The Donald J. Trump Revocable Trust v. Capital One, N.A. (S.D. Fla. 1:25-cv-21596), here. (This suit against Capital One asserts a “de-banking” claim that appears to  be another classic Trump case to monetize his presidency; although Trump does not directly control both sides, he can control the levers of power by directing Government action, directly or indirectly, against the defendant; tongue-in-cheek, maybe Trump and the related parties will give up the suit if Capital One names its corporate headquarters the Trump Building or even the name of the organization as Trump Bank.)

Points about the Amici Brief:

1. The legal points in the Amici Brief are, in my judgment, fairly weak as they are presented. Basically, the goal of the Amici Brief is to encourage the court to manage the case carefully in the ends of justice and alert the court that it is not really an adversary proceeding because Trump controls both sides of the litigation. I think that overall argument, which is just common sense, could have been presented in 4 pages. Moreover, I would be surprised if the court and the assigned magistrate were not already aware of the points made in the Amici Brief.

2. Is the Amici Brief appropriate in advance of the Government’s answer? I just ask that question and make no attempt to answer it. I will note that, for some of the particular points in the Amici Brief discussed below they could have been better presented after the Answer is filed.

3. The claims in the Amici Brief from the headings for the claims as presented in Table of Contents are:

4. The Amici urge that the district court should be concerned about the collusive nature of the litigation is legitimate. At this stage, though, all the Amici can do is to warn the court to be skeptical about what the parties do. As the Government actually performs in the litigation, Amici can raise red flags for the court. 

5. Amici claim that the Trumps’ IRC 6103 and privacy claims are time-barred. Amici acknowledges, at least by inference that this is a statute of limitations affirmative defense. However, statutes of limitations can be waived by a defendant; without an answer from the Government, I think it is premature to raise this issue. When and if the Government asserts the defense is the appropriate time to discuss it to flag it for the court. Of course, the primary point of the Amici Brief is that the suit is collusive, so that a court should be skeptical of anything the parties say. Nevertheless, it seems to me that this argument should have been presented after the Government’s Answer was filed. Moreover, I think it may be possible that the time-period for the suits may be an element of the claim (in which case it cannot be waived) as opposed to a traditional statute of limitations. The requirement that the Government consent to the suit may also play into this issue.

6. Amici claim that the suit should be against the United States rather than the IRS. This claim is not that the defendant should be the United States instead of the IRS (probably should but that is easily corrected) but that Trump’s Complaint does not plausibly assert facts that should be in the claim—that an IRS employee was responsible for the leak. The third-party leaker was an employee of an IRS contractor, but not the IRS. This too is a claim that, in my view, should have awaited the filing of the Government’s answer.

7. Amici argue that Trump’s damages claim is flawed. Actually, the Amici claim is, in part grammatically, that Trump’s is “unprecedented.” I am not sure why an unprecedented claim makes any difference if the claim is a good one legally. Moreover, plaintiffs are not required to make detailed claims as to damages in the complaint. Such claims can be fleshed out in discovery and resolved at trial.

8. The parties-plaintiff include not just the taxpayer (Trump) but also his sons (Donald J. Trump, Jr. and Eric Trump) and the Trump Organization. The Complaint alleges that the return information of those additional parties was disclosed. (Complaint ¶¶ 78, 79, 105.)

9. To summarize, the main point of my comments is that the Amici Brief should have awaited the filing of an answer. As I suggested above, I would be surprised if the court did not already intend to pay more attention to this case than run-of-the-mill litigation. However, I ask also tongue-in-cheek, whether Trump and his related parties would give up the suit in exchange for naming the IRS building the Trump Building; but, of course, I am sure he thinks he has the power to do that unilaterally.