House Democrats may be on the verge of making their first big investigative move in the new Congress: requesting President Trump’s tax returns.
Party activists – and the base – have been disenchanted so far with the slow pace. Democrats have been in power for more than a month now, with the authority to make the request thanks to their control of the House Ways and Means Committee.
But few expect the Trump Administration to comply, setting up a lengthy court battle over the returns, which Trump has refused to release unlike any other president before him since Gerald Ford.
Key to the Democrats plans, experts and former congressional investigators told TPM, is a hearing Thursday titled, “Legislative Proposals and Tax Law Related to Presidential and Vice-Presidential Tax Returns.”
As dry as that may sound, experts said that the hearing – which will examine legislation that would force presidential and vice-presidential candidates to disclose 10 years of their tax returns – will be crucial to establishing a “legitimate legislative purpose” for Congress to request Trump tax returns – potentially blunting expected legal arguments by the administration that the request is frivolous, or an example of “Presidential harassment.”
“Here, actual legislation plus a hearing substantiating the legislation creates a very strong record that there is a legislative purpose to asking for the returns, not just some effort to embarrass a taxpayer,” one seasoned former congressional investigator told TPM.
Gearing Up For a Fight
Ways and Means Committee Chairman Richard Neal is the only Democrat in Congress with the power to ask for Trump’s returns from Treasury Secretary Steve Mnuchin, as per an obscure Roaring Twenties-era provision in the tax code.
Though he’s been judicious in speaking about the matter, Neal has indicated that the committee is preparing for a court battle.
“This is the beginning of a court case. I think the idea here is to avoid the emotion of the moment and make sure that the product stands up under critical analysis,” Neal told reporters last week. “And it will.”
The key test that Democrats would face in any future court battle comes down to whether they have established that Congress has a legitimate purpose in requesting the returns. Asking for them just to release them immediately, or out of spite or a desire to humiliate, could serve as a reason for a judge to strike down the request.
George Yin, a law professor at the University of Virginia and former Joint Committee on Taxation staffer who will testify at the hearing, wrote in an article on the issue that “any congressional inquiry must relate to a legitimate legislative purpose,” as established by Supreme Court precedent.
That “legitimate legislative purpose” is set to be derived from H.R. 1 – the first bill that House Democrats introduced this session. The bill is a global legislative package that aims to clamp down on corruption through a number of different measures, and also serves as a messaging vehicle for the new majority.
One provision in the bill forces future candidates to disclose 10 years of their tax returns. Thursday’s hearing will focus exclusively on that provision, potentially teeing up the legislative grounds for a request.
One person familiar with the hearing’s planning told TPM that it would show that Congress “is pursuing a responsibility” given to it under the Constitution.
The strategy on the Trump side appears to be to run down the clock on the request by fighting it in court.
“The risk of time is weighted against the Democrats,” Justin Slaughter, a former congressional investigator, told TPM. “If they bring a bad case too quickly, that could cause problems down the road, and the Trump administration and White House have an interest in things moving slower. That kind of caution is an animating factor.”
Politico reported yesterday that Republicans are eyeing a strategy in which they will claim that Congress cannot be trusted with the returns for fear of a leak.
“We are worried about leaks,” Politico cited a Republican close to the administration as saying. “Once we share it with any member of Congress, we assume it becomes a public document.”
Leaking the returns would be a felony, and subvert previous cases in which the committee used information in the tax returns to draft a report. Congress did precisely that with Richard Nixon’s tax returns, finding that he owed $300,000 in back taxes to the IRS.
Folding the H.R. 1 bill into the hearing, however, would add weight to any future argument by the Democrats that the purpose of the request is legislative, and not vindictive.
The hearing comes amid increasing pressure on Neal to request the returns. Activists group and the Democratic base are agitating for the returns to be requested, which have come to be seen as a symbol of Democratic investigative power in the new Congress.
After tomorrow’s hearing, there will be little argument that Neal needs to continue to establish the need for a request.
“It’s tough,” Slaughter said. “If you move too slowly, you lose the opportunity.”