TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, November 15, 2018

Democrats Intend To Get Hold Of Trump’s Tax Returns, But Their 'Intemperate Comments' May Block Their Access

Trump Tax ReturnsBloomberg, Democrats ‘Intent’ on Getting Hold of Trump’s Tax Returns:

Democrats are in discussions about the best way to get the Treasury Department to hand over President Donald Trump’s tax returns, according to the incoming chairman of the House Ways and Means Committee.

“We don’t have a timetable yet, but we’ve talked about it, and we are certainly intent on doing it,” Representative Richard Neal, a Massachusetts Democrat who will lead the committee next year, told reporters Tuesday.

The heads of the House and Senate tax-writing committees have the authority to request any individual tax return from the Treasury secretary, including the president’s. Trump departed from roughly 40 years of tradition for presidential candidates by refusing to release his tax returns during the 2016 campaign. The forms, or some of the information they contain, could effectively become public if the committee votes to release them.

In practice, however, the process could turn into a protracted legal battle if Treasury Secretary Steven Mnuchin decides to delay sending the tax documents to Congress.

Law & Crime, Dems May Have Already Screwed Themselves Out of Getting Trump’s Tax Returns:

Congress has the power to call for Trump’s tax returns, but according to University of Iowa Law Professor Andy Grewal, it has to be for a legitimate legislative purpose. That means you can’t just do things out of spite or because you want to embarrass the president. As the Supreme Court said in Watkins v. United States, “there is no congressional power to expose for the sake of exposure.”

In a February 2017 post for Yale’s Notice & Comment blog, Grewal noted that while Section 6103(f) of the U.S. tax code makes it clear that committees can get someone’s tax return information, “any congressional action, including requests for information, must come within the scope of legislative powers granted by Article I of the Constitution.” That means, Grewal said, that “a request for President Trump’s tax returns, if made for purely political purposes, may exceed legislative powers.” ...

One thing that often came up during this year’s election season was that if Democrats took control of the House of Representatives, they could theoretically impeach the president. After the election, when they secured a majority, Democratic leadership made it clear that impeachment was not on the agenda—barring a bombshell report from Robert Mueller—but that they could use other powers to investigate the president. One specific power that they’re looking to exercise is the power to force the release of President Donald Trump‘s tax returns for Congress to review them.

Unfortunately, they may have already blown their chance before they even tried.

Yes, technically Congress has the power to call for Trump’s tax returns, but according to University of Iowa Law Professor Andy Grewal, it has to be for a legitimate legislative purpose. That means you can’t just do things out of spite or because you want to embarrass the president. As the Supreme Court said in Watkins v. United States, “there is no congressional power to expose for the sake of exposure.”

In a February 2017 post for Yale’s Notice & Comment blog, Grewal noted that while Section 6103(f) of the U.S. tax code makes it clear that committees can get someone’s tax return information, “any congressional action, including requests for information, must come within the scope of legislative powers granted by Article I of the Constitution.” That means, Grewal said, that “a request for President Trump’s tax returns, if made for purely political purposes, may exceed legislative powers.”

Grewal noted that there could be legitimate inquiries that Congress could make into Trump’s finances related to foreign emoluments, which is a constitutional issue. They could also potentially examine ethical issues having to do with his businesses if they want to pass changes to ethics laws. Those issues might not involve his tax returns, though.

Certain Congressional committees do have a fairly broad ability to request tax return information, while others have to “specify the purpose for which the return or return information is to be furnished,” according to Section 6103(f)(3). According to Grewal, however, even the committees with broader powers can’t have a specifically political purpose for making a request like this.

Under normal circumstances, it might be tough to prove that there is some nefarious motive behind such a request, but Democrats have already made their intentions pretty well known.

“The many intemperate public comments that Democratic legislators have made about Trump’s tax returns could taint any request they make for them,” Grewal said.

https://taxprof.typepad.com/taxprof_blog/2018/11/democrats-intend-to-get-hold-of-trumps-tax-returns-but-their-intemperate-comments-may-block-their-ac.html

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Comments

Does anyone seriously believe they want those returns for anything other than partisan political reasons?

Posted by: ruralcounsel | Nov 15, 2018 4:29:04 AM

To prevent the oft-stated intents of abuse and leaking of confidential tax information by Democrats, the next great Trump tax bill should repeal Section 6103(f) of the Code before Christmas.

Posted by: Woody | Nov 15, 2018 11:07:26 AM

I would refer readers to the previous blog post here that cites IRC Section 6103(g), which permits the President to request any tax return, with no exclusion for legislators. The battle over the President's tax returns could become a nuclear war of competing leaks, investigations, and potentially worse.

Posted by: Michael L. Wyland | Nov 16, 2018 11:12:50 AM

Michael L. Wyland, Democrats have little to fear from leaks of their tax returns. Such leaks wouldn't show unreported graft and insider tips that they received. We could look at Harry Reid's tax returns all day and never figure out from them how he got so lucky in his investments. Even Hillary Clinton's amazing cattle futures profits look okay on paper.

Posted by: Woody | Nov 19, 2018 9:07:41 AM

Wishful thinking, Woody. Wishful thinking.

Posted by: ruralcounsel | Nov 20, 2018 4:17:44 AM