Can Congress Legally Compel Trump’s Tax Returns?

David Grogan — Thursday, April 11, 2019

This past week, House Democrats followed through on a long-touted promise to demand President Trump’s tax returns. Ways and Means Committee Chairman Richard Neal is citing a little-used statue in the tax code that dates back to 1924 in order to obtain Trump’s taxes. This will surely set up a legal fight that may reach the Supreme Court, and it is up to debate whether Congressional Democrats have the legal standing to win this battle.

The Democrats’ crusade to obtain the President’s tax returns hinges on Sections 6103(f)(1) & (2) of the Internal Revenue Code. This statute allows the chairmen of the House Ways and Means Committee, the Senate Committee on Finance, and the Joint Committee on Taxation to request that the Treasury Secretary disclose the tax returns of any taxpayer to the committee.

Members of these committees can in fact view the complete tax information of any American. This would be unsettling enough if the government did not already have a history of weaponizing tax information for political gain.

Congress conferred this power upon themselves during the height of Teapot Dome investigations in 1924 to compete with an executive branch that already had unrestricted access to taxpayer returns. Now that the Democrats are the majority on the Ways and Means Committee, this power is being turned against Trump as they believe it is their right to audit his taxes.

This is notwithstanding the fact that presidents are under no legal obligation to waive the privacy of their tax information. It is merely tradition that compels candidates to disclose their returns, but none are required to do so.

Trump’s legal team will mount a defense to this inquiry that will rest on Congress’ legislative powers under Article I of the Constitution. As the Yale Journal of Regulation describes, while the tax code seems to give Congressional committees absolute power to request returns, any Congressional action, including requests for information, must serve a legitimate legislative purpose.

The Supreme Court upheld this precedent in several cases. In Watkins v. United States, the Court ruled that “there is no congressional power to expose for the sake of exposure.” And in Kilbourn v. Thompson, the Court stated that Congress cannot simply embark on “a fruitless investigation into the personal affairs of individuals.” Any investigations into government officials must serve a legislative objective of the committee.

The onus will be on Representative Neal and Congressional Democrats to prove that this request for Trump’s taxes is not a politically driven means to harass the President.

This task will be even harder now that New York state Democrats have introduced a bill that aims to disclose citizens’ state tax returns in a move that clearly targets Trump.

Ross Garber contends in Politico that Democrats will not be able to accomplish their goal outside of impeachment proceedings against President Trump, something that Speaker Pelosi has already shot down. Representative Neal asserts in his letter to the Treasury Secretary that the request for six years of Trump’s tax returns is part of an oversight investigation into the efficacy of the IRS’s audits of sitting presidents. If this is true, as Garber asserts, then it can be accomplished without Trump’s returns before taking the oath of office nor his complete tax information. This is not nearly the amount of scandal Democrats want out of this inquiry.

This debate will set in motion a years-long legal battle that may not even end before a new Congress is elected in 2020.

This demand for Trump’s taxes plays to a Democratic base that has obsessed over his returns since his election. However, it seems that President Trump has the upper hand in this fight for now.

David Grogan is an intern at CPI.