The Rule of Law Is Under Attack

The Rule of Law embraces three related principles: no man is above the law, government officials possess only the powers the law gives them, and, when they exceed those powers, an independent judiciary must be available to curtail their abuses. These principles were established a hundred and forty-four years ago in the case of United States v. Lee, 106 U.S. 196 (1882). Mary Lee, inherited Arlington House and 1,100 acres in Virginia across the Potomac River from Washington, D.C. from her great-grandmother, Martha Washington. She lived on the property with her husband, General Robert E. Lee, until the Civil War during which Congress passed a special tax on Confederate property. The tax due on Arlington House was just $92.07 but the tax commissioners refused to accept payment from Mrs. Lee’s agent and demanded the tax be paid in person. The Federal government seized the property for unpaid taxes and began building the Arlington National Cemetery. After the war, the Lees' son claimed the tax sale was illegal and sued to evict the Federal agents occupying the land. Justice Samuel Freeman Miller wrote for the Supreme Court, “[n]o man in this country is so high that he is above the law” and “[a]ll the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” Lee won the case and the Government was forced to purchase the land from him at fair market value.

The Rule of Law is currently being tested in the case of Trump v. Internal Revenue Service, No. 1:26-cv-20609 (S.D. Fla. 2026). Littlejohn, an employee of an IRS subcontractor, was indicted for the unlawful disclosure of President Trump’s and other wealthy people’s tax returns in violation of 26 U.S.C.  7213(a)(1). Littlejohn pled guilty and was sentenced to sixty months in prison. Several other people whose returns had been disclosed timely filed lawsuits within the two years allowed under 26 U.S.C.  7431(d) and the DOJ zealously defended those actions.

Two years and three months later, President Trump, his sons, and businesses filed a lawsuit seeking $10 Billion dollars in reputational and business damages. DOJ never filed an answer to the complaint and no discovery was conducted. The Court was concerned about the suit being collusive and ordered the parties to file briefs addressing whether the case presented a “case and controversy” required for Federal Court jurisdiction under U.S Const. Art. III, cl. 1. Neither party filed a brief but, instead, on May 18, 2026, not four months after the case was filed, Plaintiffs filed a Notice of Voluntary Dismissal. Two days later the DOJ published a “settlement agreement” providing for the creation of a $1.776 Billion Dollar “anti-weaponization fund” to be financed with taxpayer dollars. The settlement agreement was signed by Whitehouse counsel who was neither listed as an attorney of record nor admitted to practice law in Florida. The DOJ also issued a “Release Order” signed only by Acting Attorney General Todd Blanche releasing the President, his family, businesses, and affiliates from “any and all claims, counterclaims, and causes of action … that have or could have been asserted” by the IRS.

A motion was filed to set the settlement aside as a “fraud on the Court.” Plaintiffs protested the court lacked jurisdiction to hear the motion since the underlying “ordinary” case had been settled and dismissed by the parties. The Court disagreed and stated, “The issue before the Court is whether … [the parties] ignored ethical norms, court rules, and legal authority to manipulate the judicial process. The issue is whether they did so to gild their efforts to gain unprecedented access to public funds with the patina of legitimacy. There is nothing ‘ordinary’ about this case…”

The Court went on to rule it had jurisdiction to consider collateral issues under both Rule 11 and the Court’s inherent powers to assure “the integrity of the Court’s jurisdiction and process” and ruled the case violated the case and controversy clause of Article III.  “A justiciable controversy ‘must be definite and concrete, touching the legal relations of parties having adverse legal interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). “There is no Art. III case or controversy when the parties desire precisely the same result.” GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375, 383 (1980).

The Court specifically found, “… Plaintiffs improperly employed this lawsuit to justify a particular award in this matter – access to taxpayer funds and exemption from audits and other investigations...”  The extraordinary $1.776 Billion dollar award “fashioned by the parties for claims that were never litigated, and have yet to be defined, on behalf of unidentified third parties whose future remedies bear no relationship to the claims in this case, indicates that real adverse interests were never before the Court.” Considering the exceedingly brief four-month history of the case, the almost total absence of any docket entries indicating any adversarial actions had been taken, and the Defendant’s deviation from basic litigation strategies pursued in similar cases, the Court concluded, “… Defendants actions (or inactions) as directed by DOJ, and the subsequent ‘resolution’ of this lawsuit leads the Court to conclude the Parties interests were one and the same.” “This action was never about a party seeking judicial resolution of a legal issue or factual dispute. The nature of the suit itself and the conduct of the Parties and counsel from its filing make plain that this was an attempt to use the Court to provide some legitimacy to an agreement to confer immunity to people and entities affiliated with the President and to earmark billions of dollars from American taxpayers to redress grievances not defined in the lawsuit.”

Undoubtedly, Plaintiffs will appeal the District Court’s decision, and we have not heard the last of this latest attack on the Rule of Law. South Carolina Lawyers for the Rule of Law publish this article in the belief that the greatest protection against tyranny is an active, informed citizenry backed by a system of shared power, the rule of law, and strong democratic institutions. When people know the facts, participate in governance, and refuse to let unjust or illegal orders go unchallenged, tyranny has no place to take root.

Kevin Holmes
S.C. Lawyer for the Rule of Law

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