The Washington PostDemocracy Dies in Darkness

Judges scrutinize demand for Trump tax returns

Former president Donald Trump's lawyers headed back to court Thursday to again try to block release of his tax records. (Tony Dejak/AP)
4 min

Even though he is out of office, exposure of former president Donald Trump’s tax returns would raise concerns about the balance of power between Congress and the White House, a panel of federal judges on the U.S. Court of Appeals for the D.C. Circuit suggested Thursday.

“We’ve got to look at this case as executive branch versus legislation branch as institutions,” said Judge Karen L. Henderson, a President George H.W. Bush appointee. “If this case drags out, he could be a sitting president again.”

The hearing was the latest clash in years of litigation between House Democrats who want access to Trump’s financial records and the former president, who promised to release his tax returns as a candidate but never did. He was the first major party nominee in decades to keep that information hidden.

In 2020, the Supreme Court ruled that demands from members of Congress for the personal records of a sitting president must be held to a higher standard to preserve the balance of power between the two branches of government.

But now that he is again a private citizen, the lawmakers argue they are entitled to those tax returns in pursuit of stronger financial disclosure and auditing legislation.

“We have only one president at a time,” Douglas Letter, counsel for the House of Representatives, said in court, disputing Henderson’s characterization of the case. “There is no serious separation-of-powers argument here anymore; there is no clash between the executive and legislative branches.”

However, Judge David B. Sentelle, an appointee of President Ronald Reagan, questioned whether the fear that records could be demanded by lawmakers after a president leaves office could influence that president’s behavior in the White House.

“Isn’t there some possibility of interference with separation of powers even with respect to a non-sitting president because of its potential effect on the actions of the sitting president?” he asked.

Attorney Gerard Sinzdak, representing the Treasury Department, agreed but said the concern was “attenuated” when it came to tax returns rather than papers related to presidential decision-making.

“We are talking about the records of a private individual, not materials subject to privilege,” he said.

Even under the higher standard created by the Supreme Court, Letter argued, the request for the tax returns is valid.

“The Committee has a substantial interest in Mr. Trump’s tax return information given the unparalleled challenges his tax profile and actions as President raised for the IRS,” he wrote in a court brief.

Sentelle and Henderson were joined on the panel by Judge Robert L. Wilkins, an appointee of President Barack Obama.

The House Ways & Means Committee is seeking Trump’s tax records from 2015 to 2020, saying they would inform future legislation on what presidents must disclose and how they are audited by the Internal Revenue Service. Trump is trying to block the release on the grounds that the demand is politically motivated.

“The goal here is to immediately publicly expose and release President Trump’s tax returns,” Trump attorney Cameron Norris said in oral argument.

The same circuit recently ruled that Trump had to hand over to Congress records related to the Jan. 6 attack; the Supreme Court declined to hear an appeal of that decision.

Federal law explicitly gives the committee access to any taxpayer’s return, but Trump’s attorneys argue that law is unconstitutional and that the lawmakers’ purpose is nakedly political.

U.S. District Judge Trevor N. McFadden, a Trump appointee, had earlier ruled in favor of the lawmakers, saying even if some voiced political motives, there was also a legislative case for release. In the same courthouse, another judge last year granted the House Oversight and Reform Committee access to some but not all of Trump’s personal financial records in a separate legal battle. Trump is appealing that decision, as well.

In New York, Trump had been fighting against the release of his tax returns to the Manhattan District Attorney’s Office as investigators there probe his business activities. The documents were turned over last year after a nearly two-year court battle challenging the subpoena compelling the records. The accounting firm that prepared them said in a statement in February that the records could not be relied upon as accurate.