Trump's social media post targeting Harvard's tax-free status could cause problems for the IRS

Legal experts told NBC News that President Donald Trump's public threat to depriving Harvard University could bite him.

“We will take Harvard's tax-free status. It's what they deserve!” Trump said in his Truth Social Post Friday.

The IRS has the right to do exactly what Trump wants, but his social media posts targeting Harvard University adds possible wrinkles.

“They can do that,” said Genevieve Lakier, a First Amendment expert at the University of Chicago Law School.

Lakier, who called Trump's social media posts “stupid” and “useless”, pointed to a law that prohibits the president and other administration officials from directing the IRS to investigate taxpayers as a major obstacle.

This is not the first time the president threatens Harvard as part of his broader crusade against educational institutions, which he believes does not support his agenda.

Trump said on Truth Social last month: “Perhaps Harvard should lose its tax-free status and if it continues to push political, ideology and terrorist inspiration/support 'disease', it will be taxed as a political entity.” He added: “Remember that tax-free status is entirely determined by acting in the public interest!”

“It doesn't help that the president is politicizing it.”

“This raises the question that he is guiding this,” the move is “about retribution” and “revenge” rather than public policy, which Harvard can use in its defense.

The IRS faces an “uphill climb” if it decides to face Harvard, which could take years, said Jeffrey Tenenbaum, a lawyer specializing in nonprofits.

Harvard spokesman Jason Newton said in a statement after Trump's release that the school will fight any action to change its status. He said the government “has long been tax-free to support their educational mission” and that revocation of this status “will endanger our ability to perform our educational mission.”

“Broader use of the tool will have a significant impact on the future of higher education in the United States,” Newton said.

The White House did not respond to a request for comment.

Tax-free status allows agencies to waive certain taxes and make their donors deduct when gifts are given to them.

Lakier pointed out that the regulation was titled: “The impact of the administration on taxpayer audits and other investigations is prohibited.”

The 1998 law says: “It is illegal for any person to apply” – defined as the President, Vice President or any employee of its office – “With direct or indirect, any official or employee who requires an internal tax service to audit or terminate an audit or other investigation of any particular taxpayer for such tax liability for any particular taxpayer.”

“It's for this situation, where the president is working hard,” Rakiel said.

It would also be problematic if Trump believes he did not direct the lawsuit, but announced something that had been announced independently of his thing, because “what he is obviously trying to do is to intimidate Harvard,” which has sued his administration for reducing federal funding, she said.

“It looks like a threat” and “still unconstitutional,” Rakiel said. “The First Amendment clearly prohibits government officials from threatening to curb speech,” she said. Her position, the Supreme Court reiterated last year in cases involving New York officials' attempts to put pressure on the National Rifle Association.

In this case, Sonia Sotomayor wrote in a unanimous ruling: “Sixty years ago, the court ruled that the threat of government entities' “invoking legal sanctions and other means of coercion” was a repression of third parties “opposing third parties” to suppress unwelcome speech” which was an infringement of the First Amendment. Disconnected. ”

As for whether the IRS can deprive Harvard of its long-term status, McCaffley said: “I think this could happen, in a sense that the IRS can initiate actions and actions to take Harvard away.”

He noted that this happened before, when the IRS rejected Bob Jones University’s tax exemption status, Bob Jones University banned dating on campus and accepted people in interracial marriages. The Supreme Court upheld the agency's ruling in 1983.

McCaffery noted that the case began with an investigation during the Nixon administration in the 1970s and was not resolved until the Reagan administration.

Tenenbaum said the Jones case remains “how the current court must do this.”

The IRS must review or “check” the agency, which can take months or a year. Tenenbaum said that if the identity of the agency should be revoked, the entity could essentially attract an attractiveness to the IRS. If the agency loses an appeal, its identity will be revoked, but it may challenge findings that there may be other appeals in the federal court system.

“Assuming the law is followed, this is the only way for the IRS to revoke tax-exempt status,” Tenenbaum said. “There is no shortcut.”

McCaffrey said any IRS move to revoke that status could focus on the government’s claim that universities have an anti-Semitism record and that they have not stopped diversity, equity and inclusion programs in the way the government calls for.

“They will have to convince the courts, especially Harvard, in violation of public policy” and “not a political preference,” he said, adding that he “doubt” that the agency will be able to do so, especially if Trump continues to weigh social media on it.

“GLIB’s reference and making it seem like the president is fighting the board is useless,” McCaffley said. “When Trump begins to impose trade-offs unilaterally, he almost always weakens the arguments his own administration wants to make in court.”