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Above the law
A core principle of American democracy is that no one is above the law. It's something that Donald Trump has a hard time accepting.
When the Republican Party lost control of the House of Representatives in November, Democrats were given the ability to subject Trump to a straightforward statute. Section 6301(f)(1) of the tax code gives the chairman of the House Committee on Ways and Means (now Congressman Richard Neal (D-MA)) the unqualified right to obtain the tax returns of any American, including the president.
Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives… the [Treasury] Secretary shall furnish such committee with any return or return information specified in such request…
There is no ambiguity here. The Chairman submits the request, and the Treasury Secretary furnishes the Committee with the tax returns.
Trump, however, argues that this law couldn't possibly apply to him. He hired a new personal lawyer, William Consovoy, who immediately wrote a letter to the General Counsel of the Treasury Department, arguing that "Chairman Neal cannot legally request—and the IRS cannot legally divulge—this information."
Four pages of fluff
The letter is four pages long and filled with impressive sounding legal citations. Consovoy cites a 1986 case from Justice Ginsburg (then on the DC court of appeals) stating "'taxpayer privacy is 'fundamental to a tax system that relies on self-reporting,' since it 'guarantees that the sometimes sensitive or otherwise personal information in a return will be guarded.'" This is true, but the statutory provision cited by Neal is an exception to that rule. If Congress didn't want the exception exercised to protect privacy, it would have repealed the law.
Consovoy also cites a case where the Electronic Privacy Information Center, a non-profit, was unable to obtain portions of Trump's tax returns through filing a Freedom of Information Act request. But this is irrelevant to the current situation where Neal has explicit authority to obtain Trump's tax returns under the law with no exceptions.
Much of the rest of the letter sounds like a transcript from an episode of Hannity.
"Chairman Neal wants the President’s tax returns and return information because his party recently gained control of the House, the President is their political opponent, and they want to use the information to damage him politically," Consovoy writes. Complying with the request, according to Consovoy, would be "a gross abuse of power for the majority party to use tax returns as a weapon to attack, harass, and intimidate their political opponents."
Consovoy warns about setting a dangerous "precedent" if the IRS turns over Trump's tax returns. But every president for the last 40 years has released his returns.
Some tax experts disagree with Consovoy. "As a lawyer, this is a pretty easy question to litigate. Chairman Neal has the authority to obtain this information through this provision, which is unambiguous in its use of the word 'shall,'" Steve Rosenthal, a senior fellow at the Urban-Brookings Tax Policy Center said.
The history of Congress' power
Trump's lawyer writes as if using the statutory provision to check executive power would run counter to the purpose of the law. But providing a check on the executive branch and the president was precisely why the provision was added in 1924. Before that time, only the president could obtain an individual tax return. Congress didn't want the president to act as a gatekeeper for its requests.
Another matter concerned possible conflicts involving former Treasury Secretary Andrew Mellon, who continued to own many business interests while serving in government. Some in Congress wanted to obtain Mellon’s tax information to learn how his interests would be affected by tax legislation that Treasury was proposing to Congress… some members of Congress wanted to determine if the Bureau had shown favoritism to Mellon and his companies.
George K. Yin, a professor at the University of Virginia who studies the legislative history of the provision wrote, "concerns over President Trump’s possible conflicts of interest — including conflicts with tax legislation the committees may soon be asked to approve — would certainly seem to justify a tax committee effort to obtain and inspect his confidential tax information. A review could also assure the American public that the IRS is treating him like any other taxpayer and not giving him preferential treatment."
In his letter, Consovoy argues that "the IRS should refrain from divulging the requested information until it receives a formal legal opinion from the Justice Department’s Office of Legal Counsel." In other words, Trump and Consovoy trust Attorney General Bill Barr to do everything possible to protect Trump. Barr is also deciding how much of the Mueller report will be released to the public.
The provision cited in Neal's request is routinely referred to in press coverage as "an obscure IRS code." It's true that most provisions of the tax code are obscure. But this provision of the tax code is used. In 2014, Republican members on the Ways and Means Committee used it as part of their investigation of former IRS official Lois Lerner.
Chief of Staff digs in
Mick Mulvaney, Trump's chief of staff, claimed that Trump's tax returns would "never" be made public. According to Mulvaney, the issue "was already litigated during the election. Voters knew the president could have given his tax returns. They knew that he didn't, and they elected him anyway."
Whatever voters believed, it doesn't change the plain text of the law.
Moreover, Trump repeatedly told voters that he would release his tax returns. Here's what he told radio host Hugh Hewitt in February 2015:
HH: Would you release tax returns, though?
DT: I would release tax returns, and I would also explain to people that as a person that’s looking to make money, you know, I’m in the business of making money until I do this. And if I won, I would make money for our country.
Trump promised to make his tax returns public again in January 2016, and again in May 2016. At various times, Trump has claimed he couldn't release his returns while they were under audit. That's not true -- nothing is preventing Trump from releasing his returns while they are under audit. But, notably, Consovoy does not say that Trump's returns are under audit. He refers to an IRS "examination" of Trump's returns.
Mulvaney's position reflects Trump's stated view that his political support means the law does not apply to him. "I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters," Trump famously declared in January 2016. Frustrated last week with rulings from immigration judges about asylum cases, Trump said,"frankly, we should get rid of judges."
Running out the clock
If the administration's legal case to refuse Neal's request is so thin, why are they fighting it? Time is on their side. If they can extend the litigation beyond November 2020, whatever is in the tax returns won't be able to damage Trump politically. That is why Neal was criticized for waiting three months to make his request.
Neal said he was unconcerned about the timing but has requested the documents be turned over to the committee by April 10. It seems very unlikely that the administration will comply. At that point, Neal will likely send another letter that will set the stage for litigation.
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