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Game of Taxes

The battle over Donald Trump’s tax returns heats up.

In case you haven’t heard, Democrats in the House of Representatives have a keen interest in Donald Trump’s tax returns. Although there is no legal requirement to do so, candidates for President have traditionally released their returns to the public—which is why Democrats and their friends in the media raised such a ruckus when Trump refused to do so in 2016, a posture he has steadfastly maintained since then.

According to Trump, his lawyers have advised against release as he is the subject of ongoing audits. Democrats, meanwhile, insist there must be a more nefarious reason for hiding his finances, and they mean to get to the bottom of whatever that might be. Toward that end, they’ve issued a Congressional subpoena for the returns, with which Trump has refused to comply. As you might expect, that scuffle has now landed both parties in front of a judge—and so far, things don’t seem to be breaking Trump’s way:

A federal judge on Tuesday said financial records from U.S. President Donald Trump’s long-time accounting firm would be part of a “proper subject of investigation” by Congress, appearing to side with Democratic lawmakers seeking more oversight of the president.

U.S. District Judge Amit Mehta in Washington heard oral arguments on whether Mazars LLP must comply with a House of Representatives Oversight Committee subpoena, marking the first time a federal court has waded into the tussle about how far Congress can go in probing Trump and his business affairs.

Trump’s rationale for not releasing his returns is rather thin gruel, to be sure, which is why William Consovoy, his attorney in this matter, is making a rather novel argument as to why Congress is overstepping its bounds by subpoenaing them:

Consovoy, asserted on Tuesday that the Democrats’ subpoena fell outside of Congress’ legislative function and that the House was claiming “unbridled” power to investigate Trump.

“They have made clear that this is not about legislation. They want to know if there has been any wrongdoing,” Consovoy said. “That is not the purpose of Congress.”

The judge, however, wasn’t quite convinced:

Mehta disputed that, saying Congress could legitimately investigate whether Trump is complying with the U.S. Constitution’s Emoluments Clause, which bars Trump-owned businesses from receiving payments from foreign governments.

“That would be a proper subject of investigation,” the judge said.

Mehta questioned whether under Consovoy’s argument many historic investigations by Congress would have been improper, including the probe into the Watergate scandal that forced President Richard Nixon from office.

So basically Trump’s lawyer is asserting that Congress has no authority to investigate the President when they suspect him of wrongdoing—a proposition which is absurd on its face, as any rational human being would have to agree. On the other hand, there is a legitimate question as to what limits there are on Congress’s oversight powers—and whether or not they are permitted to launch an investigation of anyone they want for any reason they want.

Because let’s get real—a big reason Democrats want to get their hands on Trump’s tax returns is to look for something illegal or embarrassing, which they could then use to their advantage. That makes their motivation primarily political. Moreover, Congress doesn’t have any actual proof that Trump has violated the law, other than what his enemies consider to be shady behavior. Put those things together, and what you have is an investigation launched for political purposes with no hard evidence that a crime has even been committed—a total upending of the principles of jurisprudence, if there ever was one.

For Congress to assert that it has the right to use its powers to go rifling through anyone’s life in search of compromising information brings to mind Lavrentiy Beria, the head of Stalin’s secret police, who once said, “Show me the man and I’ll show you the crime.” Politicians simply cannot use their subpoena powers to go on fishing expeditions in the hopes of digging up dirt on their rivals. Would Democrats have been okay with a Republican House subpoenaing Barack Obama’s college transcripts or medical records, which he never released? Or would they have been fine with a subpoena for Obama’s birth certificate, which he waited for years to finally produce? Call me skeptical on that one.

Those are the arguments that Consovoy should have been making, rather than inventing some blanket amnesty from Congressional oversight. Let’s just hope that Judge Mehta sticks to his oath to uphold the Constitution and sees it the same way.

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