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Battle Over Trump Tax Returns May Go To Supreme Court

Steven Mnuchin's refusal of congressional oversight request sets up legal battle.

House Democrats announced yesterday that they plan to hold Attorney General William Barr in contempt of Congress. The announcement apparently prompted Treasury Secretary Steven Mnuchin to think, “I need to get me some of that action,” because he promptly set up his own confrontation with congressional Democrats by refusing to turn over Donald Trump’s tax returns.

For those who came in late, the House Ways and Means Committee formally requested copies of Trump’s tax returns way back on April 3. Trump’s tax returns have become an elusive prize akin to Barack Obama’s birth certificate and college transcripts since then-candidate Trump promised to release them while on the campaign trail back in 2016. Since the initial request was made in April, the IRS and Treasury Department have repeatedly refused to hand over the president’s tax information.

The rub is that the law seems to be on the side of the Democrats. Rep. Richard Neal (D-Mass.), chairman of the House Ways and Means Committee, cited IRS Code section 6103(f) in his request:

“Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.”

Per the AP, Mnuchin said that the request “lacks a legitimate legislative purpose” and added that the Justice Department would provide a more complete legal justification as soon as it can think of one. Seriously, the DOJ is expected to cite Supreme Court precedent that holds that congressional requests must relate to “legitimate task of the Congress” and does not include seeking to uncover or expose crimes.

“As you have recognized, the committee’s request is unprecedented, and it presents serious constitutional questions, the resolution of which may have lasting consequences for all taxpayers,” Mnuchin wrote to Neal.

“What’s unprecedented is this Secretary refusing to comply with our lawful, Article I request,” Rep. Bill Pascrell (D-N.J.), a senior Ways and Means member, told the Wall Street Journal. “What’s unprecedented is an entire federal government working in concert to protect a corrupt president from legal accountability. If these guys think they can outlast us with these tactics, they’re dead wrong.”

In a statement accompanying the original request for information, Neal addressed the question of a legitimate purpose, saying that the president’s tax returns were needed to conduct congressional oversight of the IRS “policy of auditing the tax returns of all sitting presidents and vice-presidents.” While Republicans will argue that Neal’s request constitutes a fishing expedition, the chairman seems to have met the letter of the law.

After having been audited numerous times, there is little chance that President Trump’s tax returns contain a smoking gun for illegal activity such as tax fraud. More likely, they contain embarrassing information such as a smaller net worth than what Trump has claimed or miniscule charitable donations (excluding those made to the Trump Foundation). Nevertheless, the statute does not contain an exception that allows the IRS to protect information that would embarrass the president.

After Mnuchin’s latest denial, the next likely step is for House Democrats to ask the courts to force the release of the tax returns although there is a possibility that they will also decide to hold Mnuchin in contempt. The question may ultimately make its way to the Supreme Court.

Ironically, by delaying the release of the tax returns Republicans may be hurting the president’s reelection chances. By the time the case winds its way through the judicial system, the Supreme Court could mandate a release shortly before the election. Trump’s private financial information may suddenly become a very public issue at the worst possible time. The president might be better off to rip off the Band-Aid while the election is still a year and a half away.

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