One need only recall Al Capone’s tax fraud conviction to recognize that many tax cheats historically flout other laws, too.
As of Wednesday, we’ve added another character to the books with news that the Manhattan district attorney officially filed criminal tax charges against the Trump Organization and its chief financial officer, Allen Weisselberg. (Weisselberg plans to plead not guilty to the charges, his attorney said.)
A growing chorus of pundits, politicians and even academics thus depict the law as being grounded in irrationality and being just political.
It is no surprise that the corporate defendant in the New York criminal case is owned by former President Donald Trump. This is the same Trump who repeatedly called the Russia investigation a “witch hunt” and verbally abused special prosecutor Robert Mueller and his own attorney general, Jeff Sessions.
This is the same Trump who showed contempt for elections in November 2020 when he asked the Georgia secretary of state to “find 11,780 votes,” and when that didn’t work met with top advisers to consider declaring martial law to redo the election — and finally incited an insurrection at the Capitol on Jan. 6.
Trump’s four-year presidency can be summed up in the words of the New York State Bar Association statement condemning his 2020 pardon of convicted felon Roger Stone, a key witness in the Mueller investigation: “This is a perversion of justice, plain and simple.”
The former president may soon fade from the political scene as his legal troubles worsen. But even without Trump, we must confront the perversion of justice that typifies the modus operandi of so many others like him in business, the entertainment industry and politics. Bernie Madoff, Harvey Weinstein and countless others in positions of power and prestige showed contempt for the law. They pervert justice because they think the law is an obstacle to be overcome.
First, the powerful claim they are immune from the law. Often, they prove this to be true. Some like Bill Cosby claim immunity from prosecution because their lawyers negotiated a strategically advantageous deal with prosecutors. Others claim immunity from prosecution because they are U.S. presidents.
They hide behind a constitutionally dubious presidential immunity theory blessed by the Department of Justice in three separate memoranda written during the presidencies of Nixon, Clinton and Trump. Donald Trump’s own lawyers, appearing before the 2nd Circuit in their effort to prevent the Manhattan DA from subpoenaing Trump Organization tax records, claimed the president was immune from subpoena and even could shoot someone on Fifth Avenue and still be immune from prosecution.
Trump’s defenders would have us believe that it’s the law, not his actions, that are wrong.
Others in positions of power — many child molesters, for example — claim immunity because they avoided getting caught until after the statute of limitations expired. Still others think their immunity stems from their social class. As New York real estate mogul Leona Helmsley famously told her maid, “Only the little people pay taxes.” Unfortunately for Helmsley, she was not immune from prosecution and was carted off to prison.
A second approach is to attack those who enforce the law, whether it be Mueller and his band of “angry Democrats,” the four agency inspectors general fired by Trump in the middle of investigations, the United States attorney in Manhattan also fired by Trump in 2020, or now the verbal assaults launched at the Manhattan DA from Mar-a-Lago. Trump’s strategy appears to be: When caught violating the law, deflect one’s own narcissism onto law enforcement and hope that sticks in the court of public opinion.
A third related strategy is to denigrate the rule of law itself. Claim that the law is perverse, either because the law is just political or because the law is irrational in making some things illegal and others not. A growing chorus of pundits, politicians and even academics thus depict the law as being grounded in irrationality and being just political.
In the far-right media, if Hillary Clinton or Joe Biden did it, it’s per se criminal. If Trump did it, it’s perfectly legal and any prosecutor, inspector general or member of Congress who suggests to the contrary is just on a witch hunt. Many on the left have a similar narcissistic attitude, even if not the media platform to express it, often insisting that law is defined by politics and has no moral integrity on its own.
The law is not perfect and neither are those who enforce it. But the law is not simply perverse or political either.
For over a century, nihilistic legal commentators have re-enforced this view. The German theologian and legal philosopher Carl Schmitt in the 1920s published “The Concept of the Political,” in which he argued that law is not based on neutral principles but is simply a byproduct of politics.
Academic commentators on the far right and far left today quote Schmitt, who joined the Nazi Party in 1933, frequently for the same proposition: Law is all about politics. There is no objective truth, no just concept of right and wrong underlying the law. This nihilism, like bad wine, is poured into the fancy bottles of academic theory, but it is peddled to a far larger audience under the more plebeian labels of right-wing radio, TV and internet.
Finally, there are the many clever ways to get around the law. In the 1970s, before Margaret Thatcher and Ronald Reagan reduced taxes on the rich, some academic economists sympathized with those who did not want to pay whatever taxes the legislature deemed to be their fair share. Arthur Seldon of the London School of Economics and a group of co-authors coined the term “avoision” to describe manipulative tax strategies that combined ethically problematic but legal tax avoidance (for example, moving from one jurisdiction to another to pay lower tax) with illegal tax evasion (for example, pretending to have moved from one jurisdiction to another in order to pay lower tax). Another common avoision strategy is paying an employee’s rent, private school tuition or other benefits rather than paying reportable income. This, of course, is what the Manhattan DA now alleges the Trump Organization and its CFO did to avoid paying taxes. By the 1990s Seldon’s phrase “avoision” was so widely used that it appeared on “The Simpsons” as Bart Simpson explained why Krusty the Clown was in prison for tax fraud: “I don’t say ‘evasion.’ I say ‘avoision.’” According to a 2019 New York Times article, several generations of the Trump family have been doing just that to “avoid” taxes since the 1970s. And on Wednesday, the Manhattan DA, after a lengthy fight just to get the Trump Organization’s financial records, and a 2020 victory in the Supreme Court, finally had enough evidence to hand down an indictment. Trump is the epitome of the avoision man. And the law may be catching up with him. But we cannot just focus on Trump without looking at the underlying problem — the narcissistic view of the law that gave rise to Trump and caused so many to celebrate him first as a real estate tycoon, then as a media star and finally as a president. The law is not perfect and neither are those who enforce it. But the law is not simply perverse or political either; it is grounded in a collective sense of right and wrong. One of the law’s imperfections is that those who flout the law, who think they are too powerful ever to get caught or prosecuted for violating it, are far too often right. That’s about to change with the small but important step taken by the Manhattan DA on Wednesday. Respect for the law, and enforcement of the law, are crucial to maintaining the rule of law. And that goes for everyone — even a business empire run by a man who once was president of the United States.
Richard W. Painter
Richard W. Painter was the chief White House ethics lawyer from 2005 to 2007 under President George W. Bush. He is the S. Walter Richey Professor of Corporate Law at the University of Minnesota and is a graduate of Harvard College and Yale Law School. 
