While Democrats have demanded the immediate public release of special counsel Robert Mueller’s report on his investigation into Trump and his 2016 campaign, they say Trump’s tax returns might contain information worth keeping confidential.
“We will honor the president’s privacy, review them carefully with experts before making any decision on whether they should be released to the Congress and the public,” Rep. Lloyd Doggett (D-Texas), a member of the House Ways and Means Committee, said Thursday on MSNBC.
Ways and Means Committee Chairman Richard Neal (D-Mass.) asked the IRS this week for six years’ worth of Trump’s personal and business tax returns. The tax code gives the chair the power to ask for any American’s tax information, and it says the treasury secretary “shall furnish such committee with any return or return information specified in such request.”
Nevertheless, Trump and Treasury Secretary Steve Mnuchin have suggested they won’t do so, meaning Neal would have to go to federal court to compel the release of the returns. Nobody knows how long such a case would take.
In the meantime, Republicans say Democrats are abusing their power and invading Trump’s privacy. “Weaponizing our nation’s tax code by targeting political foes sets a dangerous precedent and weakens American’s privacy rights,” said Rep. Kevin Brady (R-Texas), the top Republican on Ways and Means.
Trump is an unusually private president ― the first in four decades not to have voluntarily released at least one year of his tax returns, which can show how much money people made, how they made it and how much tax they paid. And he’s the first modern president not to divest from his businesses upon assuming office, which presents a conflict of interest because anyone seeking to influence his administration can put money directly into his pocket. Tax documents could offer clues as to who’s paying Trump.
This week Trump has repeated his 2016 campaign excuse for not releasing his taxes, saying that he can’t because he’s under audit. It’s a weird excuse because audits don’t prohibit individuals from sharing their returns and because the IRS automatically audits the president every year, which never stopped past presidents from releasing their returns.
Neal said in his request that Congress needs to know more about the scope of the presidential audits. A committee aide said lawmakers didn’t even know whether the mandatory IRS audit encompassed Trump’s personal and business returns.
In 1924 Congress gave itself the power to obtain tax records as a check on corruption in the executive branch of government, partly because then–Treasury Secretary Andrew Mellon still operated his private businesses. Before 1924, the president could release private tax info, but Congress couldn’t demand it.
Congress added confidentiality protections to private tax information in 1976 after the Nixon administration was caught plotting to use the IRS to harass his perceived enemies. The penalties for unlawful disclosure include up to five years in prison.
It‘s because of the confidentiality provisions that Republicans say Democrats are invading Trump’s privacy and that Democrats say they will tread carefully. But the law already specifies that they must, since it says info from Treasury “shall be furnished to such committee only when sitting in closed executive session,” meaning not during a public hearing.
The committee has to vote to make the tax documents public ― something Republicans did in 2014 when they were investigating allegations that the IRS mistreated conservative groups seeking nonprofit tax-exempt status. Using the same law they’re now saying Democrats are abusing, Republicans obtained and released the private tax information of 51 organizations.
Ken Kies, a Republican and former chief tax counsel for the Ways and Means Committee, testified in February that while the law clearly gives Congress the power to get tax returns, its power to disclose the documents is much less clear. He said Republicans broke the law in 2014.
“I would not have advised them to do that,” he said.
The law’s text doesn’t specify that returns can be made public ― just that they can be submitted to the full House or Senate. But the law doesn’t say that either chamber needs to be in a closed executive session, which means the statute’s authors intended for the documents to become public at that point, according to George Yin, a tax professor at the University of Virginia School of Law.
Among Democrats, Doggett and Rep. Bill Pascrell (D-N.J.) have been the most vocal about the need to get Trump’s returns. But they’ve also stressed that they won’t be careless about disclosure. Pascrell wrote in the Yale Journal of Regulation last year that the committee would use the “utmost caution” before releasing Trump’s tax returns.
“We will weigh the public good against his personal interest in keeping them hidden,” he wrote. “It is a powerful responsibility, and one none of us take lightly.”