President Donald Trump’s public threat to strip Harvard University of its tax-exempt status could come back to bite him, legal experts told NBC News.
In a Truth Social post Friday, Trump said, “We are going to be taking away Harvard’s Tax Exempt Status. It’s what they deserve!”
While the IRS has the authority to do exactly what Trump wants, his social media post targeting Harvard adds a potentially complicating wrinkle.
“There’s a way they could do this,” Genevieve Lakier, a First Amendment expert at the University of Chicago Law School, said of the IRS stripping Harvard of its existing tax status, but “it can’t be at the behest of President Trump.”
Lakier, who called Trump’s social media post “dumb” and “not helpful,” pointed to a law barring the president and other government officials from directing the IRS to investigate taxpayers as a major obstacle.
It’s not the first time the president has threatened Harvard as part of his broader crusade against educational institutions that he believes do not support his agenda.
“Perhaps Harvard should lose its Tax Exempt Status and be Taxed as a Political Entity if it keeps pushing political, ideological, and terrorist inspired/supporting ‘Sickness?’” Trump said on Truth Social last month. He added, “Remember, Tax Exempt Status is totally contingent on acting in the PUBLIC INTEREST!”
Edward McCaffery, a tax law professor at the University of Southern California Gould School of Law, agreed that “it does not help that the president is politicizing this.”
“It raises the question that he’s directing this,” and suggests the move is “about retribution” and “vengeance” instead of public policy, which is something Harvard could use in its defense.
Jeffrey Tenenbaum, a Washington, D.C., attorney specializing in nonprofit organizations, said the IRS would face an “uphill climb” if it decided to move ahead against Harvard — one that could potentially take years.
Jason Newton, a spokesperson for Harvard, said in a statement after Trump’s post that the school would fight any action by the administration to change its status. The government has “long exempted universities from taxes in order to support their educational mission,” he said, and revoking that status “would endanger our ability to carry out our educational mission.”
“The unlawful use of this instrument more broadly would have grave consequences for the future of higher education in America,” Newton said.
The White House did not respond to a request for comment.
Students on the campus of Harvard University on April 18.
Tax-exempt status allows institutions to forgo certain taxes and for their donors to take deductions when they make gifts to them.
The statute Lakier pointed to is titled: “Prohibition on executive branch influence over taxpayer audits and other investigations.”
The 1998 law says, “It shall be unlawful for any applicable person” —defined as the president, the vice president or any employees of their offices — “to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.”
“That’s meant for situations like this, where there are efforts at influence by the president,” Lakier said.
If Trump were to argue that he didn’t direct the action but rather that he announced something that was already happening independent of him — that would also be problematic, because what “he is clearly trying do is intimidate Harvard,” which is already suing his administration for cutting off federal funding, she said.
“This reasonably looks like a threat” and is “still unconstitutional,” Lakier said. “The First Amendment clearly prohibits government officials from threatening to suppress speech,” she said, a position the Supreme Court reiterated last year in a case involving a New York official’s attempt to pressure the National Rifle Association.
In a unanimous ruling in that case, Justice Sonia Sotomayor wrote, “Six decades ago, this Court held that a government entity’s ‘threat of invoking legal sanctions and other means of coercion’ against a third party ‘to achieve the suppression’ of disfavored speech violates the First Amendment. Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”
As for whether the IRS could strip Harvard of its long-held status, McCaffery said, “I think this could happen, in the sense that the IRS could initiate moves and actions to take away Harvard’s status.”
He noted it’s happened before, when the IRS denied tax-exempt status to Bob Jones University, a private school that had banned interracial dating on campus and barred admission to people in interracial marriages. The Supreme Court upheld the agency’s decision in 1983.
McCaffery noted that the case began as an investigation during the Nixon administration in the 1970s and wasn’t resolved until the Reagan administration.
Tenenbaum said the Jones case is still “the current court standard for how this has to be done.”
The IRS has to conduct an audit, or “examination” of the institution, which can take months or over a year. If it decides the institution’s status should be revoked, the entity can essentially appeal that finding to the IRS, Tenenbaum said. If the institution loses that appeal, its status would be revoked, but it could challenge that finding in the federal court system, where there could be additional appeals.
“Presuming the law is followed, that’s the only way for the IRS to revoke the tax-exempt status,” Tenenbaum said. “There’s no shortcut.”
McCaffery said any IRS move to revoke the status would likely focus on the administration’s claims that the university has a record of antisemitism and has not discontinued diversity, equity and inclusion programs as the government has demanded.
“They will have to convince the court that specifically what Harvard is doing is violating public policy” and “not political preference,” he said, adding that he’s “skeptical” the agency would be able to do so, especially if Trump keeps weighing in on social media.
“Glib references and making it seem like the president is fighting with the board of trustees is not helpful,” McCaffery said. “When Trump starts weighing in unilaterally, he almost always undercuts arguments his own administration would want to make in court.”
This article was originally published on NBCNews.com