This week, in a unsigned order Without dissent, the US Supreme Court finally allowed the US Treasury to turn over six years of former President Donald Trump’s tax returns to the House Ways and Means Committee. By refusing to hear the former president’s arguments, the higher court upheld a lower court’s ruling that the committee has the right to see the president’s tax returns and eight of his companies.
The request remained in federal court in Washington, DC, until Trump was succeeded by President Joe Biden, the Justice Department reversed its legal position, and Ways and Means Chairman Rep. Richard Neal, D-Mass. , submitted a second application to the Treasury Department in 2021.
This is clearly a legal victory for lawmakers, but one might wonder what the point of this massive effort is.
This is clearly a legal victory for lawmakers, but one could be forgiven for wondering what the point of this massive effort is. it is, as the Manhattan district attorney has already obtained many tax returns and related documents for Trump and his organizations. These documents were obtained from Mazar’s, the accounting firm that prepared Trump’s tax returns but later denied their accuracy, and have already been used to extract a guilty plea from Trump Organization CFO Alan Weisselberg and lead to the company to court. Letitia James, the New York attorney general, also has years of tax returns and has filed a civil case based largely on them. No doubt federal prosecutors in the Southern District of New York have them, too.
But while Trump’s lengthy legal dispute delayed filing documents for Neal’s committee, it also created two more dangers for Trump.
First, the House’s updated request to the Treasury Department in 2021 requires more recent tax returns, this time for tax years 2015-2020. These results cover the entire Trump presidency, which means the House will have a full picture of whether Trump or his companies may have violated the Emoluments Clause. That is the provision in the Constitution that prohibits federal officials from receiving gifts, payments, or things of value from leaders or representatives of foreign countries (and because this is a constitutional prohibition, Trump cannot argue that it does not apply to a president). ).
Second, the opinion of the prestigious DC Court of Appeals has now confirmed that the legal limit that congressional tax committees must exceed to access the tax returns of a former president (and even a sitting president) is quite high. bass.
Now, Trump must live with the possibility that some or all of his tax records will become public, a scenario he seems to have feared since he began running for public office. Tax returns in the hands of a congressional committee are not the same as tax returns in the hands of a prosecutor. Government prosecutors may obtain, but not disclose, the contents of tax returns, unless it is necessary to present relevant portions of the returns as evidence. The House Ways and Means Committee, however, is not so constrained. If it decides that taxpayer information should be transmitted to the full House or Senate, or a referral should be made to the Department of Justice, the committee may make the contents of those communications, including taxpayer information, public.
There is a long and elaborate history of why taxpayer information is considered so private in the United States. During the Civil War, public notices they were posted and published in newspapers, describing which taxpayers owed how much income tax. But after that tax law expired, concerns about taxpayer privacy became a constant theme, mainly for two reasons: first, that politicians would use taxpayer information to go after their political opponents, and second, that taxpayers, concerned about disclosure, would not be truthful in their returns. your tax returns.
As a result, even though the federal government’s ability to collect taxes was explicitly authorized by the Sixteenth Amendment In 1913, the tax power of government has always been tied to the non-disclosure of personal tax information. (In fact, citing privacy regulations, the IRS won’t even allow a taxpayer to view false tax returns filed in that taxpayer’s name, where the thief has claimed the taxpayer’s refund.)
After evidence came to light that President Richard Nixon had used taxpayer information to attack political opponents, legislation was enacted in 1976 that severely restricted the ability of a president to disclose taxpayer information. But the restrictions on congressional committees are less stringent, leaving much to the discretion of the committees.
In fact, with respect to Trump’s tax returns, the House argument that prevailed in court was that the Ways and Means Committee needs Trump’s tax information to fulfill its responsibility to finance and oversee the tax return. presidential audit program. Under this program, the IRS automatically audits each president’s tax returns, thus freeing the agency from having to decide which CEO to audit. Chairman Neal’s request to the Treasury noted that Trump’s tax returns were «excessively large and complex,» requiring review by the committee to make sure the IRS was not being intimidated and had adequate resources. This stated reason, the lower courts ruled, was enough to overcome Trump’s argument that his request for refunds was politically motivated.
To be clear, just because the Committee on Ways and Means can make Trump’s tax information public does not mean that it will, and whether the committee ultimately makes any of the material public is anyone’s guess. US District Judge Trevor McFadden, a 2017 Trump appointee to the bench, tidy to the Treasury Department to turn over the materials to the Ways and Means Committee, noting that “[i]It may not be right or prudent to publish the results, but it is the president’s right to do so.» But he also warned the committee that «[a]Anyone can see that releasing confidential tax information from a political rival is the kind of move that will come back to haunt the inventor.” In other words, what’s good for the goose is good for the goose.
That’s true. But just having the tax returns in the hands of the committee must be sobering for someone like Trump, who, having bragged about making hundreds of millions of dollars, did not pay federal income taxes in 10 of the 15 years before being elected president. It’s also true that even if the House drops its review because Republicans will soon take control of its committees, Trump’s tax returns may also be requested by the Senate Finance Committee, which will remain under Democratic control. Thus, public or not, Trump’s tax information may serve in the future as a polygraph in the courtroom, its content being a measure of the truth of the former president’s words.