The House Ways and Means Committee has now asked the Treasury Department for the president’s tax returns, which it has a legal right to do. And, according to the law, the Treasury Department “shall” comply. OK. Done and Done! RIGHT? The language seems pretty definitive. Shall means shall. No wiggle room.
Hold your horses. There are overlays of constitutional law and political power that will allow the WH to slow walk its response to the demand and, perhaps, even thwart Congress’ effort to get Trump’s tax returns.
While it is true that IRS Code 6103(f) appears to give the committee the power to get tax returns, the statute must be exercised in a way consistent with Congress’ constitutional authority. The Supreme Court has said Congress has broad authority to conduct inquiries but that its authority is not unlimited. Expect to see the 1881 case Kilbourn v. Thompsonand the 1957 Watkins v. U.S. cited extensive. Both hold that a congressional information demand must relate to a “legitimate task of the Congress” and noted that Congress is not a “law enforcement agency” that can seek information to uncover or expose crimes.
So the legal question will be: Is Congress’ purpose in seeking the president’s tax returns legitimate? Can Congress plausibly argue that it is exercising its impeachment authority, since House Speaker Nancy Pelosi and other Democratic leaders have explicitly disclaimed that the House is conducting an impeachment inquiry.
The administration would likely argue that this is not a legitimate reason to obtain all of the president’s business and tax returns since 2013, particularly because it could be accomplished without knowing the details of all of the president’s tax information. This argument would be bolstered by the fact that Congress has never obtained or even sought the tax returns of any other president. (Yeah, I know that is because they generally already had the most recent ones but it is the principal of the thing that gives Trump’s forces leverage here.) The president will no doubt insist that efforts by House Democrats to obtain his tax returns are actually motivated by politics aimed at defeating him for reelection and not policy.
The legal arguments discussed above will give Treasury Secretary Steve Mnuchin potentially plausible reasons to refuse to comply with Congress’ request or for the president to direct Mnuchin to do so. That would start a long, drawn-out process during which Congress would be deprived of the Trump tax information and which will likely take all into a federal court system increasingly favorable to Trump.
The Treasury Department could take some period of time before formally answering the committee.
The House could then file an action in court to try to force Treasury to comply.
That court case would almost certainly take years to make its way through the court system, particularly since courts are reluctant to get involved in disputes between the legislative and executive branches unless and until the parties have tried and failed to reach an accommodation.
And ultimately, a court might dismiss the case as moot once a new Congress is seated in January 2021.
So does the president holds all the cards?
In the short term, yes. But Congress still has the ultimate trump card: impeachment. Should it choose to start impeachment proceedings, the House could ultimately find that the Treasury secretary, the president, or both committed an impeachable offense in withholding the president’s tax returns for improper reasons.
For this, there is some historical precedent. The impeachment charges adopted by the House Judiciary Committee against President Richard M. Nixon included allegations that he improperly withheld information from Congress.
Despite the bleak outlook for Congress in the short term, there are nevertheless three rational reasons for the committee’s demand.
First, as a public relations move it shows the American people, and particularly Democrats, that the House is doing its job and trying to get the president’s tax information.
Second, it sets up a negotiation process by which the committee might get some of the information it is seeking. Battles over information between Congress and the executive branch are relatively common, but they almost always end in a negotiated resolution.
Murph, this was a very thoughtful and thorough exploration of this issue of The House pursuing Trump’s tax returns.
However, Congress has asked for and received presidential tax returns in the case of Nixon and under somewhat similar auspices in suspecting wrongdoing tax-wise. The House has oversight powers that include the IRS and investigating if the IRS has been performing its duties and responsibilities properly with regards to the anyone’s taxes including the president. We already know that his non-profit charity broke the law and that he should have paid taxes on the money he used from it to spend on himself so there are grounds for investigating if, after the revelations about his criminal conduct involving this “charity”, the IRS took steps to investigate and assess Trump a tax liability for his personal use of those finds.
That is one way to safely trigger that very legit IRS Code 6103(f). Yes, Trump and his law-breaking cronies will try to break this law too but I don’t think they have a leg to stand on aside from pounding their chests and moaning, “Presidential harassment!!!” That is not legal grounds to prevent The House oversight of the IRS.
In the case of Nixon, the IRS stated to Congress that all was just peachy with his tax returns and nothing was out of line but The House discovered that Nixon owed $500,000 in taxes which he had to pay. THEN…the IRS finally reviewed his returns and what do you know? They too found he owed nearly $500k too!
In April 1974, JCT [The House’s Joint Committee on Taxation] produced a 1,000-page report that found almost a dozen problems with Nixon’s returns. The agency said he owed $475,431 including interest for unpaid taxes over four years. It amounted to half of Nixon’s net worth.
Some say a better precedent came during Republicans’ Obama-era investigations into whether the IRS discriminated against conservative groups seeking tax-exempt status. As part of those inquiries, Republicans used the law to make public protected tax information about those organizations.
So this can be a precedent that allows The House not only to get Trump’s returns but to also make them public.
In the end, I think the courts will have to follow precedent and the law and rule that Trump’s tax returns must be provided…or the courts will be invalidating their own legitimacy and the institution of courts as an enforcer of laws.
It will be a fight but another one that I think Trump will lose again.
Greetings….just a quick response…..the cruz of the argument appears to be that impeachment proceedings are the ultimate leverage that the House can call into play in this matter but with Pelosi and the House leadership downplaying the idea out of an abundance of caution wary that they will give Trump exactly what he wants: a target for his bases’ and the undecided to focus on. Presidential Harassment, a coup with the government’s deep state, a plot by the know nothing fake news media.
My research led me to the conclusion that Congress may have no choice but to say that this request of the IRS is based on an impeachment inquiry to rise to the standard that investigations of the Executive Branch appear to require.