President Trump is gambling that he can stall investigations by House Democrats into his finances until after the 2020 presidential election.
The president’s strategy, prompted most immediately by the demand from House Ways and Means Committee Chairman Richard Neal, D-Mass., for six years’ worth of his tax returns, is seen by legal experts as a political delaying tactic rather than a winning legal strategy.
Treasury Secretary Steven Mnuchin has twice missed deadlines from Neal to have the IRS turn over the tax information for confidential review by the committee, and has said that he’ll determine by Monday whether to comply, after consulting with the Justice Department — which Trump’s personal attorneys asked Treasury to do. A Treasury representative did not respond to a request for comment on whether he will accede to Democrats’ inquiry.
If Mnuchin doesn’t comply on Monday, Democrats are likely to escalate the standoff into a court battle, setting up a lengthy legal process that likely wouldn’t end before the election.
“I would think it’s time to say, you’ve insulted us enough, [Congress] is not going to be put in the back seat, and therefore here’s the contempt charge, here’s the subpoena with it,” said Rep. Bill Pascrell, D-N.J., one of the most outspoken proponents on the Ways and Means Committee of obtaining Trump’s tax returns.
Trump’s personal attorney, William Consovoy, has argued that the House does not have the right to look into an individual’s private affairs, including finances, citing a late-1800s Supreme Court ruling. But Neal has argued he has legitimate legislative purposes to his request. Specifically, he’s said that the demand is meant to help determine whether the IRS, which his committee oversees, is following its own rule that a sitting president must be audited, and if the audit includes Trump’s closely held businesses.
For his part, Trump has acted as though he will fight the inquiries. For example, he has sued his own accountants and banks in an effort to prevent them from cooperating with investigations by separate House committees into his finances.
Trump’s unusually combative tone toward Congress — saying he’ll fight all subpoenas — may weaken his argument in court.
“There’s very little question that the courts are not going to be particularly solicitous of arguments made by the president in this regard,” said Jonathan Adler, a constitutional law professor at Case Western Reserve University. “The overall impression [Trump’s approach has] created is not one of lawyers carefully considering of within what bounds Congress has the right and does not have the right.”
“It makes it harder for the court to look at this and say, ‘These are good faith claims,'” Adler said.
But the legal process could take far longer than the 18 months between now and the 2020 presidential election to play out.
Josh Chafetz, a Cornell University law professor, said that the battle would delay information from coming out. “If the courts are the forum in which these things are playing out, then the administration has already won,” he said.
House Democrats say they’re considering dramatic measures to force Trump administration officials to cooperate with their investigations.
House Oversight and Reform Committee chairman Elijah Cummings, D-Md., told reporters on Thursday that House Democrats were exploring all options to compel administration officials to respond to subpoenas or other legal inquiries, including a tool that Congress has not used in decades, its “inherent contempt” authority, that would allow it to jail administration officials for contempt of Congress.
Congress has held officials in recent past administrations in contempt — such as Attorney General Eric Holder under Barack Obama and White House counsel Harriet Miers and chief of staff Josh Bolten under George W. Bush — only to have federal prosecutors decline to pursue the cases.
But inherent contempt, a power that Congress has not used since 1935, allows either the House or Senate to order its sergeant-at-arms to arrest and imprison an individual in order for the full chamber to try them for contempt of Congress.
“As I’ve said before, we are going to look at every single tool that we have in our toolbox,” said Cummings. When asked by the Washington Examiner if that included inherent contempt, “Of course [that would include inherent contempt]. That’s one of the tools.”
Impeachment could be another tool. Because impeachment is a constitutional power, like legislating, if the House impeaches Trump then the administration would have even less legal standing to withhold documents necessary for the ensuing trial.
House Speaker Nancy Pelosi has continued to throw cold water on the idea, though.
“Impeachment is never off the table, but should we start there? I don’t agree with that,” Pelosi said at an event on Friday, according to the Associated Press.
Ultimately Democrats may determine that their arguments hold more weight in the court of public opinion.
“A lot more people are going to pay attention if you call hearings ‘impeachment hearings’ rather than ‘oversight hearings,’” said Chafetz.
Despite possibly the strongest jobs market in 50 years, Trump remains more unpopular than he is popular, and polls have shown a consistent majority of voters believe Trump should disclose his tax returns. Even if did successfully stall to avoid releasing his returns before the election, the campaign could only highlight the fact that he is the first president or presidential candidate since the 1970s not to disclose his tax information, as more Democratic presidential hopefuls release their own.
