Democrats are understandably eager to use their new House majority to obtain copies of President Trump’s federal tax returns. Trump should nonetheless refuse to comply with House Ways and Means Committee Chairman Richard E. Neal’s (D-Mass.) request.
Neal’s request relies on a 1924 law, passed during the investigation of the Teapot Dome bribery scandal. That scandal involved allegations that the interior secretary, Albert Fall, had received bribes to award leases for oil production on federal lands. The law Neal relies on establishes that the IRS must provide tax returns or tax information upon the request of House or Senate committee chairpersons, including the House Ways and Means Committee chair.
The law’s intent should be read in the context of the manner of its passage. Congress was investigating an allegation that a Cabinet officer had used his public office for private gain. It needed access to his tax records to see if Fall had in fact recorded a significant increase in income at the time the leases were extended, a fact that could then be investigated to see if there was a connection between the income and the public act. The law was clearly intended to facilitate Congress in pursuing its legitimate oversight activities.
Those legitimate oversight rationales are entirely absent in Neal’s request. The Ways and Means Committee is not investigating any allegation that Trump has used his office to advance his personal business. In the absence of that, Congress is simply using its power to play partisan games.
Neal says the public purpose he seeks to advance is simply to see if the IRS properly audited the president going back to 2013, but if this is a legitimate function of Congress, than any citizen’s tax records can be accessed for any reason by Congress. Presumably the IRS’s decision not to audit can be examined, as a choice not to audit can be every bit as corrupt or faulty as one improperly or corruptly pursued. Nor is there any inherent reason that such a request should be limited only to audits of a president or executive-branch official.
This precedent would be breathtaking in its scope: Any citizen who attracts the attention of a powerful committee chair covered by the 1924 act could have his or her taxes examined — and presumably leaked to the press — with no questions asked. The potential power for abuse is obvious and frightful.
All parties used to know that the IRS’s audit power needs to be secure from political oversight or intervention. Indeed, the second article of impeachment against President Richard M. Nixon accused him of trying to obtain “confidential information contained in income tax returns” and cause “income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.” If the House Ways and Means Committee can initiate its own oversight into specific audits or the lack thereof of individuals, it is arguably engaging in the same behavior that led House Democrats to attempt to impeach the president in 1974. One can imagine a legitimate and limited request for tax information in response to a specific charge that Trump violated the emoluments clause in a specific instance. But that is not what this request is about.
Trump is right to resist with every bone in his body. His tax returns might contain unsavory or embarrassing information, but that is precisely why tax information is considered private and sacrosanct from public examination except in extreme circumstances. He might be guilty of legal violations, but presumably those are being investigated by the proper authorities in the Southern District of New York who can compel the release of tax information in their investigations. Fishing expeditions to uncover political dirt under the color of law are exactly what the independence of the IRS is supposed to protect against.
Democrats made a lot of noise during the Mueller investigation about protecting the independence of the Justice Department from political control. The independence of the IRS from political control is no less an important principle. If the Democrats won’t defend that principle, Trump must.