WASHINGTON ― The Trump administration and its defenders in Congress argue that Democrats are breaking the rules in seeking the president’s private tax information.
“We should not be in a situation where individual private tax returns are used for political purposes,” Jay Sekulow, one of President Donald Trump’s private attorneys, said Sunday on ABC News’ “This Week with George Stephanopoulos.”
“When you have people in the Congress who, for political reasons, are trying to get access to someone’s tax returns, that’s as wrong as it gets,” Rep. Jim Jordan (R-Ohio) said Friday on C-SPAN.
Accusing Democrats of having “political” ― as opposed to legitimate oversight ― reasons for wanting to see Trump’s tax returns is the GOP’s main talking point these days.
And as talking points go, it’s an awkward one. Republicans themselves used private tax returns for political purposes just a few years ago, and they used the very same law that Democrats are now relying on to request the last six years of Trump’s tax returns.
Back in 2013, Republicans thought the Internal Revenue Service under President Barack Obama was mistreating conservative groups that wanted to be recognized as tax-exempt nonprofits. So they asked the IRS to hand over tax information for conservative groups such as Crossroads GPS as well as a few liberal groups such as Priorities USA.
Congress has the power to ask for copies of anyone’s tax return thanks to a 1924 law enacted as a check on corruption in the executive branch.
In 2014, after getting the documents on the groups they requested, plus tax info relating to several dozen other organizations, Republicans on the House Ways and Means Committee made it all public. They believed it showed that an IRS official named Lois Lerner had unfairly plotted to deny tax-exempt status to Crossroads GPS and other conservative groups. The committee included the documents as an attachment to a letter asking the Justice Department to prosecute Lerner. During a closed-door hearing, the committee’s Republicans voted to make the letter public.
The Justice Department declined to prosecute Lerner, and it ultimately turned out that the IRS had improperly picked on both conservative and liberal organizations.
A spokesman for Republicans on the Ways and Means Committee now said the only comparison between the Lerner episode and Democrats’ request for Trump’s taxes is that in both cases, the IRS is being used against political enemies.
“The 2013 investigation was initiated only after the IRS publicly admitted to targeting certain taxpayers based on their political beliefs,” the spokesman said, “and only after an audit report by the Inspector General revealed that politically motivated criteria were used by political appointees of the Obama administration to identify tax-exempt applications for review.”
It’s true that lawmakers have to have a legitimate purpose for obtaining and disclosing private tax information, according to George Yin, a tax professor at the University of Virginia School of Law. But in 2014, Republicans themselves “failed to satisfy this almost trivial, commonsense restriction,” Yin argued in a 2016 paper, which said that most of the private information the committee published was irrelevant to the claims against Lerner. By contrast, Yin wrote in a 2017 commentary, using the law to look at Trump’s returns in order to expose possible conflicts of interest is exactly what the law’s authors intended.
Trump is the first modern president not to divest from his businesses upon taking office and not to disclose a single year of tax information, which could reveal details about his income and how much tax he pays.
During a Ways and Means oversight hearing in February, Republicans invited Ken Kies, who formerly served as tax counsel for the committee, to testify about the law that gives Congress access to tax returns. Kies warned Democrats that according to his reading of the statute, disclosing private tax information ― even if it has been obtained through a legitimate request ― may be a felony punishable by up to five years in prison.
When Democrats asked Kies if Republicans had broken the law in 2014, he said they “absolutely” had.
Democrats have said they won’t rush to publicize any information they receive from the Treasury Department. The Trump administration, for its part, has hinted that it will not obey the law and will instead argue in court that Democrats don’t have a legitimate reason to get at the president’s private tax information.
In light of Republicans’ past tax disclosures, Rep. Bill Pascrell (D-N.J.) said Friday that the privacy defense is “pretty hypocritical.”