Despite the fact that Trump’s protracted legal battle caused a delay in the transfer of papers to House Democrats, it also resulted in the creation of two more dangers for the former president.
This week, the United States Supreme Court gave its final approval for the House Ways and Means Committee to receive six years’ worth of tax returns from former President Donald Trump. The approval came in the form of an unsigned order that did not include any dissenting opinions. A decision made by a lower court that the committee had the right to view the tax returns of the current president and eight of his firms was upheld by the Supreme Court, despite the fact that the court declined to hear the arguments presented by the former president.
The request was left pending in a federal court in Washington, D.C., until President Trump was succeeded by Vice President Joe Biden, the Department of Justice changed its legal position, and Representative Richard Neal of Massachusetts, who chairs the Ways and Means Committee, sent a second request to the Treasury Department in 2021.
Since the Manhattan district attorney has already obtained a large number of tax returns and related documents for Trump and his organizations, this is unquestionably a victory for lawmakers in the court of law. However, one could be forgiven for wondering what the point of this massive effort is, given that the Manhattan district attorney has already obtained these documents. These documents were obtained from Mazar’s, the accounting firm that prepared Donald Trump’s tax returns but later disavowed their accuracy. They have already been used to coerce a guilty plea from Alan Weisselberg, the chief financial officer of the Trump Organization, and to bring the company to trial. Letitia James, the Attorney General of New York, also possesses years of tax returns, and she has brought a civil case that is largely based on these returns. There is no question that the United States Attorney’s Office for the Southern District of New York has them as well.
However, despite the fact that Trump’s protracted legal battle caused a delay in the release of papers to Neal’s committee, it also resulted in the creation of two more risks for Trump.
To begin, the revised request made by the House of Representatives to the Department of Treasury in 2021 asks for more current tax returns, namely for the tax years 2015-2020.
Because these returns span the entirety of Trump’s presidency, the House will get a comprehensive look at whether Trump or his enterprises may have violated the Emoluments Clause in any way during his time in office. That is the provision of the Constitution that makes it illegal for people holding federal offices to accept gratuities, money, or other things of value from the heads of state or other representatives of foreign governments (and because this is a constitutional prohibition, Trump cannot argue that it does not apply to a president).
Second, an opinion from the highly regarded District of Columbia Court of Appeals has now confirmed that the legal bar that congressional tax committees must clear in order to access a former president’s (or even a sitting president’s) tax returns is relatively low. This confirmation comes as a result of the fact that the D.C. Court of Appeals has issued its opinion.
Now, Donald Trump must learn to live with the potential that some or all of his tax documents may become public. This is a scenario that he appears to have feared ever since he first started running for public office.
It is not the same thing for tax returns to be in the possession of a congressional committee as it is for tax returns to be in the possession of a prosecutor. It is possible for government prosecutors to get access to the contents of tax returns; however, they are prohibited from disclosing this information unless it becomes necessary for them to present relevant parts of the returns as evidence. On the other hand, the House Ways and Means Committee does not face the same limitations. If the committee comes to the conclusion that information about taxpayers should be communicated to the entire House or Senate, or that a referral should be made to the Department of Justice, then the committee has the authority to make the contents of those communications public. This includes the information about taxpayers.
Why taxpayer information in the United States is seen as having such a high level of confidentiality is the result of a long and complicated history. Public notices were displayed all across the country and published in newspapers during the time of the Civil War. These notices detailed which taxpayers owed how much income tax. But after that tax law was repealed, concerns about taxpayer privacy became a recurring topic of discussion. This was primarily the case for two reasons: first, that politicians would use taxpayer information to persecute their political opponents; and second, that taxpayers, worried about disclosure, would not be truthful in their tax returns.
Therefore, despite the fact that the Sixteenth Amendment explicitly authorized the federal government to levy taxes in 1913, the government’s power to tax has always been wedded to the nondisclosure of personal tax information. This was the case even though the ability of the federal government to levy taxes was explicitly authorized. (In point of fact, the IRS will not even permit a taxpayer to see bogus tax forms filed in the name of that person, when the thief has claimed the taxpayer’s refund. They cite privacy restrictions as the reason for this refusal.)
The revelation of evidence that then-President Richard Nixon had used taxpayer information to target political opponents led to the passage of legislation in 1976 that severely restricted the authority of a president to divulge taxpayer information. This was done in response to the revelations. However, the limitations placed on congressional committees are far more lax, and the committees have a great deal of leeway in determining how to proceed.
In point of fact, the House of Representatives’ argument that was upheld by the courts in regard to Donald Trump’s tax returns was that the Ways and Means Committee needs access to Trump’s tax information in order to fulfill its responsibility of funding and supervising the presidential audit program. Because of this policy, the Internal Revenue Service (IRS) reviews the tax returns of each and every president, freeing the agency of the responsibility of selecting which chief executive to review. In his letter to the Treasury Department, Chairman Neal noted that President Trump’s tax returns were “inordinately vast and complex,” which necessitated an investigation by the committee to ensure that the Internal Revenue Service was not being intimidated and had adequate resources. According to the decisions of the lower courts, this stated rationale was sufficient on its face to disprove Trump’s claim that the request for his tax returns was motivated by political considerations.
To be clear, the fact that the Ways and Means Committee has the ability to make Trump’s tax information public does not necessarily mean that it will do so. Furthermore, it is anyone’s estimate if the committee will ultimately make any of the papers public. “it might not be right or wise to publish the returns, but it is the Chairman’s right to do so,” the federal district judge Trevor McFadden, who was appointed to the court in 2017 by Trump, said as he ordered the Treasury Department to hand over the materials to the Ways and Means Committee. McFadden added that “[i]t might not be right or wise to publish the returns.” However, he also advised the committee that “everyone can see that revealing secret tax information of a political adversary is the type of move that will return to plague the inventor.” He said this when addressing the fact that the committee. To put it another way, if something is healthy for the goose, it must be healthy for the gander as well.
That is correct. However, the mere fact that the committee now has access to the tax returns must be a wake-up call for someone like Trump. Despite boasting that he made hundreds of millions of dollars, Trump did not pay any federal income taxes for ten of the fifteen years prior to being elected president. It is also true that even if the House decides to abandon its review because Republicans will soon gain control of its committees, Trump’s tax returns could still be requested by the Senate Committee on Finance, which will continue to be controlled by Democrats despite the fact that the House committees will soon be under Republican control. Therefore, regardless of whether the information is made public or not, it is possible that in the future it will serve as a polygraph in the room, with its content serving as a gauge of how truthful the former president’s comments are.