Grewal: The Battle For Trump’s Taxes And The President’s Potential Revenge

Andy Grewal (Iowa), The Battle for Trump’s Taxes and the President’s Potential Revenge, 36 Yale J. on Reg.: Notice & Comment (Oct. 18, 2018):

The 2018 midterm elections are around the corner, and Democrats are favored to retake the House. Democratic leaders have indicated that, should they regain control, they will perform robust investigations into President Trump and his administration. Trump’s tax returns have drawn particularly strong interest, and House Minority Leader Nancy Pelosi has already promised that obtaining those returns would be “one of the first things we’d do.”

My prior post discussed the tax code provisions that would support congressional requests for Trump’s tax returns. It noted that Section 6103(f)’s plain language would authorize some congressional committees to request those returns, and that those returns could potentially be made public. However, if a committee sought Trump’s returns for an improper reason, Trump could present constitutional defenses to disclosure. Whether those defenses would succeed remains uncertain, given the breadth of Congress’s investigatory powers and the absence of any direct case law.

But Trump might have another way of discouraging any improper congressional requests. Section 6103(g) authorizes the President to obtain anyone’s tax return from the IRS, with no carve-out for federal legislators. Thus, if a congressional committee threatens to request Trump’s tax returns, the President could respond in kind, and threaten to review Democrats’ returns.

Most federal legislators have declined to release their tax returns, even after media requests, so this threat would presumably be taken seriously. See Roll Call, Members of Congress: Where Are Your Tax Returns? (Jun. 26, 2017) (473 out of 535 federal legislators have not released their returns or did not respond to requests for disclosure); POLITICO, Pelosi grilled for not releasing her own tax returns (Jul. 19, 2012). ...

[B]oth the President and Democratic legislators should pause before acting under Section 6103.