(image via Getty)
Yesterday, the House Ways and Means committee finally sued Steve Mnuchin and the Treasury Department to compel them to release Donald Trump’s tax returns to the committee, as required by law. The Trump administration has vowed to fight the subpoena all the way up to the Supreme Court. Depending on how the Court is feeling, we could get a decision on whether Trump must release his tax returns by early next year.
The House is pursuing the matter along two legal fronts. The first is statutory. 26 U.S. Code Section 6103(f) says, PLAIN AS DAY, that the Treasury Secretary SHALL furnish tax returns upon the request of Ways and Means. Handing over the Trump’s taxes is a point-and-click application of the statute. There is no reasonable wiggle room here. Mnuchin hands over the taxes or laws don’t matter.
If statutory clarity isn’t enough for you, the Federalist Society is very sad you won’t apply this strictly textualist answer to the issue and demand Donald Trump release his returns to Congress (I’m joking, of course, because FedSoc are craven hypocrites). But beyond boorish textualism, there is a good reason for Section 6103 to exist as clearly as it does. Tax returns are just information. It’s information about citizens collected by the government. House Ways and Means represents the government, so does the Treasury Department. All the “government” is doing is asking “government” to share information collected by “the government.” There’s no good reason, not structurally in terms of separation of powers, or philosophically in terms of good-government principles, for one branch of the government to hide information it has collected from another branch of the government. The people who write the tax laws and the people who administer the tax laws should know what each other knows about information available in tax returns.
Allowing Congress to see Trump’s taxes under Section 6103 isn’t a hard case. But the House is also pursuing the returns under Congress’s subpoena power. This gets a little tricky. The Trump administration says that Congressional subpoena power is limited to the purposes of law-making or oversight. The House has thrown up a bunch of legislative and oversight reasons for wanting the taxes. They’re compelling enough… if you’ve been living under a rock. But if we can just all sit upon the ground and tell sad stories about the death of kings, like adults, then it’s fairly obvious that the House just wants the tax returns to hurt Trump and potentially build a case for impeachment.
The problem with this second House approach towards getting Trump’s taxes is that there is a Constitutional way to discover information that might help you build a case for the impeachment of a President. THAT WAY IS CALLED IMPEACHMENT. For the love of GOD, people, INCLUDING PEOPLE IN CONGRESS, need to stop acting like impeachment hearings and articles of impeachment are the same things. Upon convening impeachment proceedings, the House’s subpoena power is no longer limited by legislative purposes, it becomes a criminal investigative body. It is THROUGH impeachment hearings that Congress gathers the evidence to make the case for impeachment. Impeachment is just the CHARGE. It’s up to the Senate (lol) whether the case is strong enough to convict.
Trying to conduct these “impeachment-like” investigations is, frankly, bullshit. And it potentially hurts the Constitutional separation of powers. Because you know what, Congressional subpoena power should be limited to legislative and oversight purposes. It should not be used to harass or embarrass the executive branch. Trump’s taxes are not necessary for “oversight,” the argument that they need to know if Trump is passing laws that help his business is kind of crap. Congress needs these returns to hold the President accountable, and the way to do that is IMPEACHMENT not whatever the hell this is.
Of course, a normal President, one with “nothing to hide,” one who cared about the Constitutional separation of powers and the stature of the office he will leave behind, would just hand over the taxes under section 6103 and avoid this entire damaging case. Trump thinks his handpicked Supreme Court justices are going to deliver him a victory on the legislative purpose question, but either way a ruling on this issue is terrible. If Trump wins, the Court will essentially be saying that the executive branch never has to submit to a Congressional subpoena ever again. If Congress wins the Court is opening the door to potentially endless Benghazi-like harassment of the executive branch in the future. Either way, the delicate balance of powers is damaged, all so Trump can continue his corrupt fight to hide his likely tax fraud. Even Richard freaking Nixon was not this selfish.
I don’t know what the Supreme Court is going to do, because the Court has become a borderline illegitimate body. Brett Kavanaugh is a Trump patsy. Neil Gorsuch shouldn’t even be there. Clarence Thomas and Samuel Alito just want to watch the world burn. John Roberts just needs a plausible reason to let Trump be racist. Who knows what these five men do when confronted with this case.
But there’s only one right answer: a 9-0 unanimous decision that Mnuchin has to hand over the taxes under Section 6103, and refusal to consider the legislative purpose question on the merits. A slam dunk, and a punt. Anything less will cause lasting damage to the separation of powers, all because Democrats are too afraid to impeach the President and Trump is selfish to defend the law.
How House Democrats set the stage for a Supreme Court showdown over Trump’s tax returns [Washington Post]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.