Democrats and President Trump are on a collision course over the president’s tax returns, one that could push them into a legal gray area and a high-stakes court battle.
Following their victory in the midterm elections, House Democrats indicated Wednesday that they are prepared to fight for the returns.
Rep. Lloyd Doggett, D-Texas, said on a press call Wednesday that Democrats aim to use the power of the majority to request Trump’s taxes immediately. “I think it’s important for our oversight to get those tax returns,” he said.
Under an obscure section of the tax code, the Treasury Department is obligated to hand that information over, if requested by the Ways and Means Committee, of which Doggett is a senior member.
Rep. Richard Neal D-Mass., set to chair the committee, called on Trump Wednesday to voluntarily hand over his tax returns, but suggested that he is preparing for a fight with the administration to take the information using his own authority.
“Even if the request is made, I don’t expect that afternoon we’re going to see those tax forms,” Neal said in an interview with CNN. “So I think we’ll do what we have to do, and then see where the road takes us and the path that we travel.”
During a press conference Wednesday, Trump suggested he would not cooperate with the document request, which is similar to a subpoena.
“They’re under audit, they have been for a long time, they’re extremely complex, people wouldn’t understand them,” Trump said of his taxes. “Nobody turns over a return when it’s under audit.”
An audit wouldn’t prevent Trump from fulfilling the Democratic request — every president is automatically placed under audit while in office, and audits wouldn’t interfere with turning over the current or prior tax returns that Democrats may seek. It is unclear, though, if the Treasury Department will comply with the Democrats’ request.
“Secretary Mnuchin will review any request with the Treasury General Counsel for legality,” a Treasury spokesperson told the Washington Examiner.
The legal options available to the Treasury to deny the question aren’t apparent, but public statements made by Democratic members of Congress could be used to argue that they intend to violate Trump’s privacy by releasing the returns, which is illegal. So far Mnuchin appears content to wait and see how Democrats, and his boss, play their hands.
“There’s a federal statute that has been on the books for nearly a hundred years that allows the chairman of the relevant congressional committees to look at someone’s tax returns, and I don’t see any legal reason why that shouldn’t include Donald Trump,” said Deepak Gupta, an appellate lawyer who’s argued multiple cases against the current administration.
Dean Zerbe, a former senior tax counsel during Sen. Chuck Grassley’s R-Iowa, tenure as chair of the Senate’s tax policy committee, said that Democrats could strengthen their case by providing a tightly focused request to Treasury.
“I think that it’s not unfair for Treasury to understand the request and the purpose of the request,” said Zerbe, who participated in several investigations using the same legal power Democrats seek to use with Trump’s returns. “To make this dance happen, the Democrats need to lead and provide details of their request and the purpose of the request and give Treasury something tangible to review and consider.”
If Treasury officials choose to forgo a legal challenge and provide Trump’s returns, they may demand that they be reviewable only by members of the House Ways and Means Committee in a closed session, with Treasury staff present, similar to the procedure used for reviewing sensitive information at the congressional intelligence committees. It’s unlikely Democrats would accept such an arrangement, though.
“We have a constitutional responsibility to have oversight. That’s the balance of power,” House Minority Leader Nancy Pelosi, D-Calif., told reporters at her own press conference on Wednesday, when asked about how hard Democrats plan to push for Trump’s returns.
Pelosi also pledged that the Democrats’ efforts would be disciplined. “I don’t think we’re going to have any scattershot freelancing on this,” she said.
Zerbe, the veteran tax investigator, said negotiations between Treasury and congressional staff for sensitive tax information was standard during his time in Congress. But the circumstances were much different than they are now, with Treasury haggling over procedure rather than politics.
“Every request we had was bipartisan,” he said.
