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What Does “Small Government” Buy Us?

Suddenly, America is a nation of socialists, asking in dismay, “Where’s the government?”

These are not born-again Bernie Sanders activists but everyday people of all political stripes (including previously apolitical multitudes) who’re now clamoring for big-government intervention in their lives. Nothing like a coronavirus pandemic to bring home the need that all of us have — both as individuals and as a society — for an adequately funded, fully functioning, competent government capable of serving all. Alas, as everyone can see in our present moment of critical national need, government today has been reduced to a rickety medicine show run by an inept, small-minded flimflammer peddling laissez-fairyland snake oil.

“We have it totally under control,” President Donald Trump pompously declared after the first U.S. case was confirmed in January. As it began rapidly spreading out of control in February, he tweeted nonchalantly, “It will all work out well,” adding, “We’re doing a great job.” But an increasingly anxious public found that reliable test kits couldn’t even be purchased from Trump’s hollowed-out government health agencies. Still, he shrugged off all concern and responsibility: “Looks like by April, you know, in theory, when it gets a little warmer, it miraculously goes away.” Not exactly a can-do Rooseveltian response to a national crisis, but he stayed blase, denying scientific reality and assuring us, “One day — it’s like a miracle — it will disappear.”

Of course, it hasn’t, and by March, the inconvenient fact of a rising death toll exposed this imposter of a president as incompetent, uncaring … and silly. So, after weeks of the complete absence of White House leadership, a deadly pathogen is raging practically everywhere across our land; unknown millions of us are being infected; a “closed indefinitely” sign has been hung on the American economy; and even our people’s social and civic interactions — the essence of community life — have been halted.

Right-wing politico Grover Norquist once said he wanted a government so small he could “drag it into the bathroom and drown it in the bathtub.” Trump is now showing us what such a small-minded government looks like. And what it costs us.

Suddenly, social distancing has become the official ethical standard for human relationships, abruptly supplanting eons of ingrained communal behavior by us humanoids (handshakes, hugs, pub life, ceremonial gatherings, etc.). Awkward. Disconcerting. Isolating.

Yet, as we frantically scramble to deter the health ravages of COVID-19 and grapple with the global economic devastation it’s causing, we might benefit by pondering how social distancing is a self-inflicted cause of the contagion’s disastrous spread. For some 40 years, American corporations and governments have colluded to push economic, political and social policies that have intentionally distanced the financial fortunes of the wealthy from the well-being of the workaday majority.

Consider the interrelationship of multimillionaires with the unseen kitchen staff of restaurants where they dine. To further enrich themselves, such multimillionaires have forced low-wage policies on food preparers, denied health coverage for them and lobbied to kill proposals to provide paid sick leave. So, one kitchen worker sneezes. He or she is infected with coronavirus but doesn’t know it due to having no health care coverage for testing. Even though running a fever, the staffer must come to work so as not to lose the job. Later, somewhere a multimillionaire sneezes. After all, COVID-19 doesn’t distinguish between rich and poor.

The very proposals that plutocrats have been blocking for years (living wages, “Medicare for All,” paid sick leave, family medical leave, free college and trade school tuition, home health care and others) are exactly what a sane government and egalitarian economy would adopt to fend off the wholly destructive inequality that now confronts every American.

While we’re now forced to temporarily distance ourselves from one anther, the lethal disease our country has is the widening separation of rich elites from the rest of us. And the cure is a national push for renewed social cohesiveness . As a friend and fellow writer recently put it, COVID-19 “puts into focus a biological, psychological, economic, and socio-political fact we too often deny: We are a species of completely interdependent beings.”

Populist author, public speaker and radio commentator Jim Hightower writes “The Hightower Lowdown,” a monthly newsletter chronicling the ongoing fights by America’s ordinary people against rule by plutocratic elites. Sign up at HightowerLowdown.org.

How Gitmo Warped American Government

Reprinted with permission from TomDispatch

In January 2002, the Guantánamo Bay Detention Facility in Cuba opened its gates for the first 20 detainees of the war on terror. Within 100 days300 of them would arrive, often hooded and in those infamous orange jumpsuits, and that would just be the beginning. At its height, the population would rise to nearly 800 prisoners from 59 countries. Eighteen years later, it still holds 40 prisoners, most of whom will undoubtedly remain there without charges or trial for the rest of their lives. (That’s likely true even of the five who have been cleared for release for more than a decade.) In 2013, journalist Carol Rosenberg astutely labeled them “forever prisoners.” And those detainees are hardly the only enduring legacy of Guantánamo Bay. Thanks to that prison camp, we as a country have come to understand aspects of both the law and policy in new ways that might prove to be “forever changes.”

Here are eight ways in which the toxic policies of that offshore facility have contaminated American institutions, as well as our laws and customs, in the years since 2002.

1. Indefinite detention: The first item on any list of Guantánamo’s offspring would have to be the category “indefinite detention.” In the context of U.S. law, until that long-ago January, the very notion was both foreign and forbidden. Detention without charge or trial was, in fact, precluded by the Fifth Amendment’s right to due process, a reality that had been honored since the founding of the republic. Though the detainees there were eventually granted access to lawyers and the right to have their cases reviewed, for only a handful of them has that right of being charged or released been realized.

The indefinite detention that began at Guantánamo Bay has now spawned its mirror image in the camps for undocumented immigrants (and their children) along the U.S. Mexican border. Even the optics there are proving to be carbon copies of Guantánamo: the open-air wire cages, the armed guards, and the physical abuse of migrants and asylum seekers, both adults and children. At Guantánamo Bay, the government didn’t distinguish between juveniles and adults until years after the facility had opened, another example of a policy Gitmo brought into existence that was previously inconceivable in the U.S. legal system. In some ways, in fact, the situation at the border may be even worse, as the detained there are kept in unsanitary conditions without sufficient access to doctors.

And here’s another way the border is one-upping Guantánamo. The government was required to give the International Committee of the Red Cross access to its wartime detention facilities, so the health and medical conditions at Gitmo were monitored and kept to a relatively decent standard once those initial three months of open-air cages ended. In the border detention centers, however, tots have been left in soiled diapers, housed along with their mothers and fathers in bitterly cold, jail-like conditions, and denied adequate medical attention, including vaccines.

2. A new legal language for the purpose of bypassing the law: From the very start, Guantánamo challenged the normal language of law and democracy. The detainees there could not be called “prisoners” as they would then have been considered “prisoners of war” and so subject to the protections of the Geneva Conventions. The cages and later prefab prison complexes (transported from Indiana) could not be labeled “prisons” for the same reason. So the government invented a new term, “enemy combatant,” derived from “unlawful enemy belligerent,” that did have legal standing. The point, of course, was to create a whole new legal category that, like the offshore prison itself, would be immune to existing laws, American or international, pertaining to prisoners of war.

This evasion of the law has not only persisted to this day, but has crept into other areas of Washington’s foreign policy. Recently, for instance, Trump administration lawyers invoked the term “enemy combatant” to justify the drone killing of Iranian Major General Qassem Suleimani in Iraq. Meanwhile, at the border, asylum seekers have been transformed into “illegal immigrants” and, on that basis, denied essential rights.

3. Legal cover: While a new language was being institutionalized, the Department of Justice offered its own version of legal cover. Its Office of Legal Counsel (OLC) was enlisted to provide often-secret legal justifications for the policies underlying what was then being called the Global War on Terror. The OLC would, in fact, devise farfetched rationales for many previously outlawed policies of that war, most notoriously the CIA’s torture and interrogation programs whose “enhanced interrogation techniques” were used at the Agency’s “black sites” (or secret prisons) around the world upon a number of high-profile detainees later sent to Guantánamo.

Before 9/11, few outsiders even knew of the existence of the Office of Legal Counsel. In the years since, however, it’s become the White House’s go-to department for contorted, often secret legal “opinions” meant to justify previously questionable or unauthorized executive actions. Notoriously, OLC memos justified “targeted killings” by drone of key figures in terror groups, including an American citizen. Recently, for instance, that office has been used to explain away a number of things, including why a sitting president cannot be indicted (see: former special counsel Robert Mueller) or the granting of absolute immunity to White House officials so they can defy subpoenas to testify before Congress (see: House impeachment hearings). And as any OLC memos can be kept secret, who’s to know, for instance, whether or not similar legal memos were written to cover acts like the recent killing of Major General Suleimani?

4. The sidelining and removal of professionals: From its inception, Guantánamo’s supervisors shoved aside any professionals or government officials who stood in their way. Notably, then-Secretary of Defense Donald Rumsfeld appointed individuals to run Guantánamo who would report directly to him rather than go through any pre-existing chain of command. In that way, he effectively removed those who would contradict his orders or the policies put in place under his command, including, for instance, that prisoners on hunger strikes should be force-fed.

In the Trump era, this dislike of professionals has spread through many agencies and departments of the government. The twist now is that those professionals are often leaving by choice. The State Department, for instance, has dwindled steadily in size since Donald Trump took office, as those disagreeing with administration policies have simply quit or retired in significant numbers. Similarly, at the Pentagon, in a steady drumbeat, officials have resigned or been fired due to policy disagreements.

5. The use of the military for detention operations: In the fall of 2002, General Tommy Franks, the head of U.S. Central Command, complained to Rumsfeld that his troops were being wasted on detainee operations. Hundreds of prisoners had been captured in the invasion of Afghanistan that began in October 2001 and Army personnel were being asked to serve as guards in the detention centers set up at the new American military bases in that country. Though many of those detainees would subsequently be transferred to Guantánamo, the military was not off the hook. A joint task force of all four of its branches would be deployed to Guantánamo to serve as guards for the arriving detainees. Some of them insisted that it was not a task they were prepared for, that their previous service as guards at military brigs for service personnel who had broken the law was hardly proper preparation for guarding prisoners from the battlefield. But to no avail.

Today, that military has been deployed in a similar fashion to the southern border in support of detention operations there, a steady presence of more than 5,000 troops since the early days of the Trump presidency, including active-duty military personnel and the National Guard. Under U.S. law, the military is not authorized to carry out domestic law enforcement. A letter from 30 members of Congress to Pentagon Principal Deputy Inspector General Glenn Fine made the point: “The military should have no role in enforcing domestic law, which is why Trump’s troop deployment to the southern border risks eroding the laws and norms that have kept the military and domestic law enforcement separate.” Fine is now conducting a review of that deployment, but who knows when (or even if) it will see the light of day.

6. Secrecy and the withholding of information: When it came to Guantánamo, Pentagon officials discussing the number of detainees there would usually offer only approximations, rather than specific numbers, just as they would generally not mention the names of the prisoners. Journalists were normally kept from the facility and photographs forbidden. Meanwhile, a blanket of secrecy shrouded the prior treatment of those detainees, many of whom had been subjected to abuse and torture at the black sites where they were held before being transported to Gitmo.

Today, on the border, the policy towards journalists, infamously dubbed “the enemies of the people” by this president, has been distinctly Gitmo-ish. Information has been withheld and efforts have been made to keep both journalists and photographers from border detention camps. Journalistic Freedom of Information Act requests have often been the singular means by which the public has gotten some insight into government border policies. Even members of Congress have been denied access to the detention facilities, while the U.S. Customs and Border Protection Agency has failed to keep records that would enable migrant families to reunite or let any oversight agency accurately determine the number of detainees, particularly children, being held.

In the theater of war, similar secrecy persists. Just this month, for example, the administration refused to present Congress (no less the public) with evidence of its assertion that the Iranian major general it assassinated by drone posed an imminent threat to the United States and its interests.

7. Disregard for international law and treaties: In characterizing the Geneva Convention as “quaint” and “obsolete” as part of its justification for the detention and treatment of prisoners in the war on terror, President George W. Bush’s administration began to steadily eat away at Washington’s adherence to international treaties and conventions to which it had previously been both a signatory and a principal moral force. What followed, for instance, was a contravention of the Convention Against Torture, both in the CIA’s global torture program and in Washington’s toleration of the mistreatment of detainees it rendered to other countries.

The lack of respect for treaty obligations and for the sanctity of international cooperation in matters affecting world peace, health, and harmony has only spread in these years with Trump administration decisions to withdraw from agreements and treaties of various sorts. These included: the Paris climate accord, the nuclear agreement with Iran, and Cold War-era nuclear arms treaties with Russia (the Intermediate Nuclear Forces agreement last year and, more recently, the ignoring of warnings from the Russians that there will not be sufficient time to negotiate the renewal of the essential New Start nuclear arms limitation agreement that will lapse in 2021). As a result, the world has become a more dangerous and unpredictable place.

8. Lack of accountability: Although some of the newly legalized policies of the Bush era, including the use of torture, were ended by the Obama administration, there has been no appetite for holding government officials responsible for illegal and unconstitutional conduct. As President Obama so classically put it when it came to taking action to hold individuals accountable for the CIA’s torture program, it was time “to look forward as opposed to looking backwards.”

Today, Donald Trump and his team expect a similar kind of Gitmo-style impunity for themselves. As he’s said many times, “I can do whatever I want as president.” The withholding of military aid to Ukraine in an attempt to get information on rival Joe Biden (and his son) is but one example of the license he’s taken. A sense of immunity from the law is deeply entrenched in this administration (as the refusal of his key officials to testify before the House of Representatives has shown).

It’s worth noting that the House impeachment of the president was a rare step forward when it comes to holding officials accountable for violations of the law in this era (though conviction in the Senate is essentially unimaginable). Whether such accountability will ever take hold in the context of global policy — in the killing of Suleimani, in the separation of children from their families at the border, or in the context of election interference — remains to be seen. At the moment, it seems unlikely indeed. After all, we still live in the Guantánamo era.

The toll of the war on terror in terms of lives and treasure has been well documented. It has cost American taxpayers at least $6.4 trillion (and probably far more than that), while resulting in the deaths of up to 500,000 people, nearly half of whom are estimated to have been civilians (a number that doesn’t include indirect deaths from disease, starvation and other war-related causes). Meanwhile, a new Gitmo-ized narrative for the law and national security policy has come into being.

The irony is unmistakable. The Guantánamo Bay detention facility was purposely established outside the U.S. so that it would not be subject to the country’s normal laws and policies. As many warned at the time, the notion that it would remain separate and anomalous was sure to be illusory. And indeed that has proved to be so.

Instead of remaining an offshore anomaly, Guantánamo has moved incrementally onshore and that is undeniably its indelible legacy.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law, as well as the editor-in-chief of the CNS Soufan Group Morning Brief. She is the author and editor of many books, including Rogue Justice: The Making of the Security State and The Least Worst Place: Guantánamo’s First 100 Days.

Joshua L. Dratel, a New York-based lawyer, litigates key national security cases involving terrorism, surveillance, and whistleblowers. He is a contributor to Greenberg’s newest volume, Reimagining the National Security State: Liberalism on the Brink.

Julia Tedesco helped with research for this article.

Copyright 2020 Karen J. Greenberg and Joshua L. Dratel

GAO Finds Trump Violated Law In Ukraine Scandal

Reprinted with permission from Alternet

President Donald Trump’s administration violated the law when it withheld aid to Ukraine as part of his actions at the center of the impeachment case, according to a new report from the independent Government Accountability Office, which serves Congress.

The finding was announced on the same day that the Senate impeachment trial officially began, and it affirmed what many have thought: The Office of Management Budget, as a part of Trump’s Ukraine scheme, broke the law to implement the president’s orders.

Here are seven key details you should know from the report:

1. The conclusion

These are the topline findings:

Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.

This conclusion dramatically undermines Republican’s defenses of Trump in the impeachment. Republicans have repeatedly said there was nothing truly scandalous at the heart of the Ukraine scandal and that the Democrats made it up out of whole cloth. But here, an independent government agency determined that the president’s actions violated the law. There’s a whole lot of other evidence of wrongdoing and malign intentions on the president’s part, and a violation of the law isn’t necessary for impeachment, but it emphasizes the seriousness of the president’s offense.

2. The Office of Management and Budget first began officially stalling the aid on July 25 — the same day as Trump’s phone call with Ukrainian President Volodymyr Zelensky.

“On July 25, 2019, OMB issued the first of nine apportionment schedules with footnotes withholding USAI funds from obligation,” the report said.

3. The report lays out why Trump doesn’t get to stall money at his whim, according to the Constitution.

The Constitution specifically vests Congress with the power of the purse, providing that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” … The Constitution also vests all legislative powers in Congress and sets forth the procedures of bicameralism and presentment, through which the President may accept or veto a bill passed by both Houses of Congress, and Congress may subsequently override a presidential veto. … The President is not vested with the power to ignore or amend any such duly enacted law. … [The] Constitution does not authorize the President “to enact, to amend, or to repeal statutes” … Instead, he must “faithfully execute” the law as Congress enacts it.

The Constitution grants the President no unilateral authority to withhold funds from obligation.

4. The Impoundment Control Act specifically prohibits presidents from delaying the allocation of funds except for specific reasons.

The report noted that Congress was specifically concerned about the kind of actions Trump undertook when it enacted this law, as it sought to ensure that “the practice of reserving funds does not become a vehicle for furthering Administration policies and priorities at the expense of those decided by Congress.”

5. OMB’s excuses for not complying with the law do not add up.

The Trump administration tried to argue that the pause in the funds was lawful because it was a “programmatic delay.” But the GAO didn’t buy it.

“OMB’s assertions have no basis in law,” the report said. “[Programmatic] delays occur when an agency is taking necessary steps to implement a program, but because of factors external to the program, funds temporarily go unobligated. … This presumes, of course, that the agency is making reasonable efforts to obligate. … Here, there was no external factor causing an unavoidable delay. Rather, OMB on its own volition explicitly barred DOD from obligating amounts.”

6. In fact, OMB implicated the president directly in the hold while offering an illegitimate excuse.

“OMB described the withholding as necessary to ensure that the funds were not spent “in a manner that could conflict with the President’s foreign policy,’” the report said. But the report noted, as explained in (4), that this is exactly what the Impoundment Control Act is meant to avoid.

“The ICA does not permit deferrals for policy reasons,” the report continued. “OMB’s justification for the withholding falls squarely within the scope of an impermissible policy deferral. Thus, the deferral of USAI funds was improper under the ICA.”

7. As it did in the impeachment investigation, the Trump administration appears to have obstructed or not complied with the GAO’s probe.

While OMB complied with the GAO’s investigation’s requests for information, the Department of Defense did not.

“We have contacted DOD regarding its response several times,” the report said. “Thus far, DOD officials have not provided a response or a timeline for when we will receive one.”

Similarly, the State Department was in control of a separate set of funds to Ukraine that was also delayed in the same period. However, the reported noted: “State provided us with limited information.” So while the GAO didn’t conclude that the hold on the State Department funds was illegal, it said it still has questions about the legality of that delay as well.

“OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of FMF funds,” the report said. “We will continue to pursue this matter and will provide our decision to the Congress after we have received the necessary information.”

How The IRS Failed To Curtail Much-Abused Fat-Cat Loophole

Reprinted with permission from ProPublica.

In March 2019, the IRS added a scheme to its annual “Dirty Dozen” list of “the worst of the worst tax scams.” That same scheme was targeted, just weeks earlier, when the U.S. Department of Justice filed a fraud lawsuit against a handful of promoters allegedly responsible for generating more than $2 billion in improper tax write-offs. And the Senate Finance Committee has been investigating that very same racket, recently demanding thousands of pages of documents from six promoters. Lawmakers from both parties have introduced legislation to halt the same practice.

The scheme they’re all trying to kill is what’s called a “syndicated conservation easement,” which the IRS calls “abusive” and says has resulted in bogus deductions for the rich that have cost the U.S. Treasury billions in revenues.

A conservation easement, in its original, legitimate form, is granted when a landowner permanently protects pristine land from development. In that scenario, the public enjoys the benefit of undeveloped land and the taxpayer gets a charitable deduction. By contrast, the syndicated form, created and packaged by profit-seeking middlemen known as “promoters,” involves buying up land, finding an appraiser willing to declare that it has huge development value and thus is worth many times the purchase price, then selling stakes in the deal to wealthy investors who extract tax deductions that are often five or more times what they put in. (ProPublica investigated syndicated easements in the 2017 article “The Billion-Dollar Loophole.”)

But the multifront crackdown seems to be having, at best, a limited effect. There were signs that the pace of syndicated deals has eased, according to an IRS letter to Congress in July 2018 that cited incomplete data; that’s the most recent official statement from the agency, which declined to comment for this article. And some entities doing syndicated projects have seen their business drop or have even left the field. But IRS commissioner Chuck Rettig offered a different picture to the Senate Finance Committee this spring. “Syndicated transactions have absolutely not declined,” he testified. “They’re still there.”

In November, Rettig announced an escalation — including the launch of criminal investigations — in the agency’s attempts to stymie syndicated easements. “We will not stop in our pursuit of everyone involved in the creation, marketing, promotion and wrongful acquisition of artificial, highly inflated deductions based on these aggressive transactions,” he said in a statement at the time. Three IRS divisions are now conducting coordinated examinations of syndication deals after identifying 125 “high-risk cases,” and outside contractors have been hired to assist with the investigative load. More than 80 tax court cases are now pending against partnerships that used the syndicated easement deduction.

The imperviousness of the scam’s promoters and investors has left tax experts flummoxed. “Boy, it isn’t like the old days, when people were fearful of the IRS,” said Steven Miller, who oversaw enforcement and tax-exempt organizations during his 25 years at the IRS and is now national tax director with consulting firm Alliantgroup. “I’m worried people aren’t afraid of the cop on the beat any more.”

Another IRS veteran offered a similar view. “I thought by now they would have put these guys out of business,” said former agency commissioner John Koskinen, who took steps against syndicated easements before he left in late 2017. “Obviously, if you can get four to seven times your investment back in deductions, that’s a good deal. But you really have to have a lot of chutzpah to pull it off.”

Some promoters continue to flaunt their sales pitches. In November, for example, an Alabama promoter (which was not sued by the Justice Department) solicited high net-worth clients with an ad in Barron’s, promising, in capital letters, “TAX DEDUCTIONS AVAILABLE THROUGH CONSERVATION EASEMENTS…100,000 INVESTED YIELDS UP TO 600,000 IN DEDUCTIONS.”

And sizable deals are still being struck, including by an Atlanta firm called EcoVest Capital, a chief target of the Justice Department lawsuit. According to a private placement memorandum dated Oct. 24, which was obtained by ProPublica, EcoVest was planning as many as three new syndicated deals on 1,549 acres in rural Calhoun County, Texas. One, touting a deduction of $4.10 for every $1 invested, was completed by year-end. (The Justice Department suit, which is still in its early stage, asserted that EcoVest has been involved in 51 syndication easement deals since 2009, generating $1.7 billion in federal tax deductions.)

On their face, the risk disclosures to potential investors in a syndicated deal seem daunting. For example, the private placement memo for EcoVest’s Texas offering warned of a “very high likelihood that the Property Entity or the Company will be audited by the IRS.”

But experts cite several reasons for the stubborn survival of this tax-avoidance scheme. The first is that the IRS, which Congress has starved for funding, chiefly wields its clout through individual audits and tax court cases, which invariably take years. And even the dozens of tax court cases the IRS is pursuing target only a fraction of syndicated deals.

More important, the syndicated deals are structured in a way that insulate the wealthy individual investors, leaving the promoters and outside lawyers to do battle with the IRS. Their fight is fueled with “audit reserves” of as much as $1 million that are set aside as part of every syndication partnership. Some deals even offer “audit insurance” from Lloyds of London to offset disallowed write-offs.

“The way the structure works is pretty buttoned up,” Miller said. “The investor sits there and doesn’t see immediate pain. You’re not going to be bothered by the IRS at the front end. Some of them say: ‘Well, let me do the math. What’s the likelihood of that 40% penalty?’ That’s the calculation people are making.”

Miller believes the deterrent effect will kick in only if more cases personally target individual promoters and deal consultants with tough penalties and professional sanctions. “Ultimately,” he said, “they need to crush a few appraisers like a grape.”

The “linchpin” of the syndicated easements, Miller said, is the inflated appraisal. “How do I buy something today for a dollar and magically everything I buy is truly worth $10? That belies rational thought. You just scratch your head.”

Here’s how the appraisal worked in one syndicated deal described in the Justice Department complaint. In 2015, an EcoVest entity acquired 28 acres in North Myrtle Beach, South Carolina, for $1.1 million. The firm raised about $9 million from investors who bought the property, then made an easement donation based on a claimed value for what the land would be worth if developed as a multifamily resort. That projection, made by an appraiser hired by the promoters, produced a tax deduction of about $39.7 million. The tax writeoff for investors: $4.12 for every $1 invested.

In a written response to ProPublica’s questions, an EcoVest spokesperson called the government’s charges “baseless” and insisted that “none of the appraisals associated with EcoVest sponsored investments are abusive or fraudulent.”

One appraiser regularly retained by EcoVest and other syndicators also looms large in the Justice Department suit: Claud Clark III, based in Magnolia Springs, Alabama. The complaint notes his involvement in at least 58 syndicated easement deals and alleges that Clark, 66, “continually and repeatedly” generated “grossly overvalued appraisals.”

In January 2019, the Alabama state real estate appraiser board brought a formal complaint against Clark, after a detailed review of one of his easement appraisals found an inflated valuation riddled with errors and omissions. Threatened with loss of his Alabama license, Clark voluntarily surrendered it in April instead. He faces a second complaint filed with state regulators in Louisiana, regarding a 2018 appraisal he did for syndicators in Jefferson Davis Parish.

EcoVest has continued to use Clark. Its October private placement memorandum, which raised $19.3 million from investors, did not disclose that he had surrendered his appraisal license in his home state. (A spokesperson for EcoVest said Clark’s relinquishment of his Alabama license wasn’t disclosed “because, under securities laws, it was not material to whether Mr. Clark was authorized to issue an appraisal in Texas — a state with different appraisal rules, regulations, and practices.”)

Clark did not respond to requests for comment. On Christmas Eve, however, his attorneys filed a 130-page response and counterclaim to the Justice Department complaint, denying any inflated appraisals and accusing government officials, including the IRS commissioner, Rettig, of making “unlawful disclosures” of appraisal information from his tax returns in public statements about the litigation.

Promoters of syndicated conservation easements have long been at war with the supporters of traditional easements, who worry that abusive deals will prompt Congress to eliminate the tax break altogether. The traditional conservation community, embodied by the Land Trust Alliance, the Washington, D.C., association of nonprofit land trusts, began pressing the IRS to crack down nearly a decade ago. (Land trusts are a key part of the process: The rules for conservation easements require that any property donated to seek an easement deduction must be accepted and maintained by a land trust or government entity.) The Land Trust Alliance later refused to accredit any trust accepting syndicated deals.

The IRS’ attempt to crack down on syndicated easements dates back to December 2016, when the agency took the rare step of designating profit-making syndicated easements as abusive “listed” transactions. The IRS demanded special paperwork identifying everyone involved in such deals — from promoters and tax advisers to appraisers and investors — and warned that continued involvement would brand them for investigations and audits.

The agency next took its campaign to tax court, after refusing to back down on dozens of audits rejecting the fat write-offs and demanding back taxes, interest and penalties of up to 40%.

But with millions at stake, promoters have fought back fiercely. In 2016, they formed a Washington, D.C.-based advocacy group, called Partnership for Conservation, which has spent more than $3 million to date on lobbyists. EcoVest has spent another $2.5 million.

The Partnership for Conservation defends the legitimacy of syndicated deals, arguing that the profit motive produces “tremendous opportunities” for conservation, according to Robert Ramsay, executive director of the organization. He said that the IRS should limit enforcement to cases of appraisal and valuation abuse, which he calls rare. “You have to stop with the premise that all of these are egregious and over the top,” Ramsay said. “I don’t think that’s the case.”

Among the syndicators’ most fervent supporters is Robert Keller, a conservation biologist who runs the Atlantic Coast Conservancy, a land trust in Jasper, Georgia, and has accepted more syndicated easements than anyone. Keller acknowledged in an interview that his business has slowed, declining from 56 easements in 2017 to 22 in 2019. His land trust is itself now also under IRS audit for 2014 through 2016. (One of the reasons for the decline in volume for Keller: Atlanta-based Ornstein-Schuler, among the most prolific syndicated-easement promoters, announced last January that it was abandoning the business, citing “recent developments and the uncertainty related to the conservation and gifting of property.”)

Keller’s land trust displays the slogan “Saving the world — One small piece at a time.” He is unapologetic about accepting syndicated easements. “For me, as a conservation biologist, this allows me to put away vast pieces of property,” Keller said. “I want to save the world.”

Keller asserts the campaign against syndicated easements resulted from an unholy political deal between the Land Trust Alliance and IRS. In September, he filed a Freedom of Information Act lawsuit against the IRS to force the release of correspondence between the two groups that he claims will provide smoking-gun evidence.

Land Trust Alliance CEO Andrew Bowman called the notion of such a conspiracy “absurd.” As he put it: “Taxpayers are being bilked. The intent of Congress is being violated. And the future viability of land conservation is endangered. The egregious profiteering the IRS has tracked … must end.”

At the urging of Bowman’s group, bipartisan congressional sponsors have, for the past three years, proposed legislation that would kill most syndications by limiting their profitability. It would bar deductions that exceed two and a half times the investment for any easement partnership that owned the land for less than three years.

In July, Congress’ Joint Committee on Taxation projected that passage of the latest incarnation, the “Charitable Conservation Easement Program Integrity Act of 2019,” would, if enacted, produce $7.1 billion in additional tax revenue through 2021. The bill has yet to get out of committee.

Paul Kiel contributed to this report.

Correction: This story originally misstated the founding year for the Partnership for Conservation. It was 2016, not 2017.