WASHINGTON ― Donald Trump’s administration has said it needs more time to consider a Democratic request for the president’s tax returns.
But there’s actually not much to consider. The law gives the administration no room to refuse. Democrats have said they’ll go to court to get the documents ― and they’ll have a strong case if they do.
Last week, House Ways and Means Committee chairman Richard Neal (D-Mass.) asked the Internal Revenue Service for six years of Trump’s tax returns, setting a deadline for this week. On Wednesday, Treasury Secretary Steve Mnuchin responded that he’ll think about obeying the law, but that the request seemed unconstitutional.
Stalling is a good strategy for Mnuchin. If he had flat-out said no, Democrats could escalate right away. So a Democratic aide said they will probably give the IRS another deadline before taking action ― most likely by issuing a subpoena and then telling a judge that the IRS isn’t doing its job.
In such a scenario, Democrats would be in a strong position to win, since the Supreme Court has repeatedly held that Congress must be able to obtain information from the executive branch in order to write legislation. “The scope of the power of inquiry,” the court said in a 1959 opinion, “is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”
But Democrats have limited time, as two recent cases show.
During George W. Bush’s presidency, Democrats sought testimony from administration officials regarding the politically motivated firings of several U.S. attorneys. A federal court said in 2008 that White House officials Josh Bolten and Harriet Miers should indeed testify ― but the clock ran out after the administration appealed to a higher court. Because all members of the House have to get re-elected every two years, Congress essentially starts over every other January. The appeals court said subpoenas expire once a Congress ends, because at that point it ceases to be a legal entity.
The other case came during the Obama administration, when Republicans wanted Attorney General Eric Holder to hand over documents relating to the Justice Department’s Operation Fast and Furious gun trafficking investigation. U.S. District Court Judge Amy Berman Jackson ordered the administration to hand over some of the material in 2016, but Republicans appealed for more. They didn’t get anything else before Trump’s surprise electoral victory that year. (After Trump took charge, Republicans asked Jackson to vacate her earlier opinions so they couldn’t be cited in cases against the administration. She refused.)
The Congressional Research Service said the two cases showed that even though federal courts have upheld congressional investigative power, enforcing subpoenas in court “may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case.”
Democrats should not have waited three months just to ask for Trump’s taxes in the first place, said Jeff Hauser of the Revolving Door Project, an anti-corruption initiative of the liberal Center on Economic and Policy Research. And lawmakers should hurry up and take his administration to court, he said, because they need to win before it’s too late.
“Congress needs to be aggressive and cut to the chase in order to shine an effective light on how Trump’s IRS is or is not applying the rule of law to Trump,” Hauser said.
Neal addressed his request to IRS Commissioner Charles Rettig, saying Democrats need to evaluate the scope of audits of the president that the IRS automatically does every year. Neal’s authority stems from a 1924 law enacted as a check on the executive branch of government.
By stepping in to respond, Mnuchin may have already crossed a legal line. Former Treasury Secretary Larry Summers pointed out in an op-ed this week that the IRS commissioner is responsible for enforcing tax laws, and that if the secretary wants to step in, he’s supposed to give Congress 30 days’ notice.
“It is my responsibility to supervise the commissioner,” Mnuchin said this week in response to questioning from Rep. Mike Quigley (D-Ill.) during an appropriations hearing.
A longstanding Treasury Department delegation order says it’s the commissioner who is “responsible for the administration and enforcement of the Internal Revenue laws.”
“The rules and the laws don’t matter to the administration,” Quigley later told HuffPost. “They’ll break down anything to protect [the president].”
Every U.S. president since Richard Nixon has voluntarily disclosed at least some tax information. As a candidate, Trump said he would, but ultimately did not. He is also the first modern president not to put his private business assets in a blind trust.
Christopher Rizek, a tax attorney with the firm Caplin & Drysdale and a former Treasury Department official, said the law is clear, both on the duty to hand over tax info and on the fact that Rettig, not Mnuchin, ought to be the one who does it.
“I have a mandatory statutory obligation and I’m told not to do it by my boss?” Rizek said. “You’re in illegal-order territory.”