Daniel Hemel (Chicago), Fact and Fiction on Trump’s Tax Returns: What Trump’s Lawyer’s Letter Gets Right — And Wrong:
President Trump’s personal attorney, William Consovoy, sent a letter to the Treasury Department’s general counsel on Friday arguing that House Ways and Means Chairman Richard Neal “cannot legally request — and the IRS cannot legally divulge” — the president’s tax returns. The letter gets a couple of things right and other things very wrong.
First, Consovoy is correct that 26 U.S.C. § 6103(f), the once-obscure 1924 statute that everyone is now talking about, does not resolve the present controversy. ... As Andy Grewal and others have (rightly) noted, § 6103(f) cannot extend any further than Congress’s legislative power. ...
Consovoy suggests that the legitimacy of the Ways and Means Committee’s investigation should instead be judged on the basis of Neal’s underlying motives, which — according to Consovoy — are political. That suggestion runs headlong into Watkins. “We have no doubt that there is no congressional power to expose for the sake of exposure,” Chief Justice Warren wrote for the Court in that case, “[b]ut a solution to our problem is not to be found in testing the motives of committee members for this purpose.” Watkins, 354 U.S. at 200. As Warren continued: “Such is not our function. Their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly’s legislative purpose is being served.” Id. ...
This is not to say that § 6103(f) gives the Ways and Means Committee carte blanche to request any individual’s tax returns. As Consovoy correctly notes, “First Amendment freedoms … apply to congressional investigations” too. So for example, if Neal had asked for the personal returns of every member of the Wall Street Journal editorial board, or if Senate Finance Committee chair Chuck Grassley demanded the returns of every New York Times columnist other than Bret Stephens and Ross Douthat, then there would be a likely First Amendment violation, and the First Amendment trumps § 6103(f). But energetic congressional oversight of the executive branch and its leader does not violate the First Amendment — or come anywhere close.
All of which is to say: Consovoy is right that Congress’s § 6103(f) authority is not unlimited: a request must be in furtherance of a legitimate task, and it must not run afoul of the Bill of Rights. But Neal’s request easily falls within those broad parameters. To quote Warren once more, “[i]t is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action.” Watkins, 354 U.S. at 187. That duty clearly applies to the Treasury secretary and the IRS commissioner here.