In the complaint that House Democrats filed in federal court last week, they argued that the court needs to move fast because the Ways and Means Committee’s investigation “will necessarily end on January 3, 2021” ― when a new Congress starts after the 2020 election.
The lawsuit asks the U.S. District Court for the District of Columbia to force the Trump administration to comply with a subpoena ― one of the dozen-plus that the Democrats have issued as part of their oversight of the administration, on subjects ranging from next year’s census to the special counsel investigation into the president’s 2016 campaign. The subpoena for Trump’s tax returns is the first that Democrats have asked a court to enforce.
While nobody knows how long the case might take, anyone hoping that Congress gets the president’s tax returns before Election Day may end up disappointed.
“I would be surprised if it takes less than a year, but I think much depends on strategic decisions made by the parties and what they do to try and advance the case,” said Alexander Reinert, a professor at the Benjamin N. Cardozo School of Law in New York.
Though federal courts have tended to side with Congress in high-profile subpoena fights, they don’t generally operate within the two-year congressional timeframe. For instance, House Republicans sued for documents related to their investigation of the Justice Department under President Barack Obama in 2012, but the court didn’t order the department to hand over the material until 2016.
The Trump administration could try to slow things down, Reinert said. It has to decide, for instance, whether it will answer the Democrats’ complaint by filing a response or a motion to dismiss. The latter option might fail, but it could also eat up time. Ultimately, Judge Trevor McFadden, whom Trump named to the bench in 2017, will determine how fast the case moves.
Even if the U.S. District Court wraps up the dispute in the next seven or eight months, whoever loses is going to take the matter to the appeals court, which Reinert said would extend the case several more months and make it unlikely that there’s a final decision before November 2020.
Neil Kinkopf, a professor at the Georgia State University College of Law, said the appeals court could move fast and would likely want to drop its decision well before voters start turning in their ballots.
“The last thing a court would want to do is hand it down in October,” Kinkopf said.
After the appeals court weighs in, the losing party could still try to take the case to the U.S. Supreme Court. The high court would be more likely to get involved if there’s a disagreement between the lower courts or if the appeal goes against the legislative branch, Kinkopf said, because the justices like to be the ones who settle significant constitutional questions.
The Supreme Court typically hears arguments from fall to spring and finishes releasing decisions in early summer ― which theoretically could put off a final verdict until June 2021.
Some legal experts have said Democrats should easily win the subpoena dispute because the core of the case is a simple matter of law. Democrats asked for six years of Trump’s personal and business tax returns under a federal statute designed to give the chairs of congressional tax committees access to anyone’s federal tax information. The law has been on the books for 90 years and it wasn’t controversial until the Trump administration refused to follow it.
In the Ways and Means Committee’s initial formal request for the tax returns, Chairman Richard Neal (D-Mass.) said that Congress needs to evaluate the way the Internal Revenue Service audits the president, which the IRS has done automatically every year since Congress caught President Richard Nixon severely underpaying his taxes in the 1970s.
Trump is the first president since then to refuse to disclose any of his personal tax information. He has also bragged that he’s exploited the tax code to reduce his tax liability, even referring to the practice as “sport” among real estate developers.
The Treasury Department denied Neal’s initial request and the subsequent subpoena, arguing that the Democratic lawmakers only care about embarrassing the president and therefore have no legitimate “legislative purpose” ― which federal courts have said is a necessary ingredient in any congressional investigation.
Republicans claim that an obscure Ways and Means Committee report from September 2017 is proof of Democrats’ true intentions. In a section of that report, Neal and Rep. Bill Pascrell (D-N.J.) complained that Republicans had blocked them from trying “to obtain, examine, and make available to the public President Trump’s federal tax returns.” More recently, Democrats have insisted that making the documents public is not their goal. (The law says the committee can receive private tax information while in a closed meeting, but then vote to make it public.)
“No one could reasonably believe that the Committee seeks six years of President Trump’s tax returns because of a newly discovered interest in legislating on the presidential-audit process,” the Justice Department said in a June memo belatedly justifying Treasury Secretary Steve Mnuchin’s refusal to follow the law.
The lawsuit describes the Trump administration’s position as nothing short of an attack on the ability of Congress to investigate, which the Supreme Court has said is an inherent part of its constitutional duty to legislate. Without the tax returns, the Ways and Means Committee said it can’t trust the presidential audit process, “understand how provisions of the tax code are implicated by President Trump’s returns, or exercise its legislative judgment to determine whether changes to the code may be warranted.”
Some Democrats grumbled that it took three months for Neal to make the initial request and then another three months to file the lawsuit. This week, Rep. Lloyd Doggett (D-Texas), another member of the Ways and Means Committee, said that because the legal case won’t be resolved “until next year or beyond,” the committee should take up New York state’s offer to provide the president’s state tax returns. Neal has seemed uninterested.
While the lawsuit asks the court to hurry, Neal told HuffPost in March that he couldn’t force the judicial branch to follow a political schedule.
“I can’t substitute my timetable for the federal courts’,” Neal said. “I’ve been very careful not to presuppose a timeline.”