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

Monday, March 11, 2019

Hemel: Democrats Demanded Trump's Tax Returns. Then They Dragged Their Feet.

Trump Tax ReturnsPolitico op-ed:  Democrats Demanded Trump's Tax Returns. Then They Dragged Their Feet., by Daniel J. Hemel (Chicago):

The House has the authority to request anyone's tax documents. But, inexplicably, the leadership has taken it slow.

Demanding the president’s tax returns “is one of the first things we’d do” when Democrats control the House of Representatives, now-Speaker Nancy Pelosi told her hometown San Francisco Chronicle less than a month before the November 2018 midterm elections swept her party back into power. “[T]hat’s the easiest thing in the world,” she added. Congress is a “co-equal body of government,” and “[w]e have to have the truth.”

But more than two months after Pelosi took the speaker’s gavel, President Donald Trump’s tax returns are still sitting in an IRS file cabinet, and no member of the “co-equal” Congress has had a look. Rep. Bill Pascrell (D-N.J) says his party will issue a formal demand for Trump’s returns in mid- to late March, but the one House Democrat who has the statutory authority to obtain the documents — Ways and Means Committee Chairman Richard Neal (D-Mass.) — insists he still doesn’t “have a timeline” for moving forward on the matter.

Voters who took Pelosi at her word last fall are right to feel frustrated. Obtaining the president’s tax returns was never going to be “the easiest thing in the world,” and it will likely require a legal battle that could go all the way to the Supreme Court. For that reason, it was important for House Democrats to think strategically about how to build the best case. But as weeks turn into months, the Democrats’ plodding progress starts to look less like strategizing and more like foot-dragging.

This much is clear: A 95-year-old federal statute authorizes Neal, as Ways and Means chairman, to obtain any taxpayer’s return from the IRS upon written request. (The law gives the same authority to Neal’s upper-chamber counterpart, the chair of Senate Finance Committee, Iowa Republican Chuck Grassley.) The statutory language is unequivocal: The Treasury secretary, who is in charge of the IRS, “shall furnish” the Ways and Means or Finance Committee “with any return or return information” upon written request from that committee’s head. The committee can then review the returns behind closed doors, though it has the discretion to share what it learns with the full House or Senate.

To be sure, section 6103(f)—like any other—is subject to constitutional limits. So Neal must make sure that his request complies not only with the minimal requirements of the statute, but also with the potentially more onerous strictures of the Constitution. Fortunately for Neal and the House Democrats, the Constitution places only loose constraints on Congress’ information-gathering efforts. The Supreme Court has said the power to conduct investigations is “inherent” in Congress’ constitutional authority to legislate. That “broad” power of inquiry “comprehends probes into departments of the Federal Government to expose corruption, inefficiency, or waste.” ...

Putting the president’s tax returns under scrutiny will not resolve all remaining questions about the president’s potential conflicts of interest. If, hypothetically, Trump received an illicit payment from a foreign head of state, he probably wouldn’t reveal that to the IRS. But a thorough review of the president’s filings could ferret out any favoritism he has enjoyed in the audit process or any policy moves by his administration that benefited his businesses. It is, moreover, one of the few areas in which House Democrats can make headway even when the Republican-controlled Senate won’t come to the table. Obtaining the president’s tax returns should have been one of the House Democrats’ signature accomplishments. Instead, the tax return issue may end up being an albatross around their leaders’ necks.

https://taxprof.typepad.com/taxprof_blog/2019/03/hemel-democrats-demanded-trumps-tax-returns-then-they-dragged-their-feet.html

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Comments

Of course they're dragging their feet. Asking for Trumps' returns makes a great talking point--but the moment you pull the trigger, you open the possibility of the opposition party asking for the tax returns of *every member of Congress.*

And I'm sure there are a hell of a lot of skeletons in that closet.

Posted by: William Woody | Mar 11, 2019 7:53:13 AM