The announcement that Treasury Secretary Steven Mnuchin would not provide six years of President Trump’s tax returns by the deadline given by the House Ways and Means Committee chairman was just the latest in a long series of egregious attacks on the rule of law. Perhaps it felt more egregious than some because the law at issue is so clear (the Treasury Department “shall” provide them) and the administration’s conduct is so indefensible.
Treasury Secretary Steven Mnuchin said his department would not meet the Wednesday deadline set by congressional Democrats to turn over copies of President Trump’s tax returns, escalating a clash between the White House and Congress.
Mnuchin said he was consulting with the Justice Department as to the constitutional questions raised by the Democrats’ request and appeared deeply skeptical of the lawmakers’ intentions. He did not flatly reject the notion that he might ultimately comply, but his letter to the House Ways and Means Committee suggested that Mnuchin would not hold himself to any timeline.
Even jaded legal experts versed in the Trump administration’s lawlessness were taken aback by this brazen defiance of the law.
“When Democrats first made their request Trump stated that he ‘wasn’t inclined’ to turn over his returns as if he had a choice,” recalls former prosecutor Mimi Rocah. “That seemed like a preposterous statement because the law seems very clear. But it now appears that the Treasury Department is taking that same lawless position playing defense for a President that is terrified for the public and Congress to see his tax returns.” She adds, “The law is written in a mandatory way so that politics won’t influence the process. But unfortunately that’s exactly what’s happened.”
Constitutional scholar Joshua Matz also finds the administration’s conduct preposterous. “Under the plain language of the statute, [Way and Means Committee] Chairman [Richard E.] Neal is undoubtedly entitled to review the President’s tax returns. So the question is whether the statute is unconstitutional as applied to President Trump. And the answer is no,” Matz tells me. “Secretary Mnuchin’s assertion that this request serves no legitimate legislative purpose cannot be taken seriously. It’s one thing for the President to insist that he can run a business while also running the Executive Branch; it’s quite another to claim that he is immune from any oversight regarding conflicts of interest while doing so.”
And, of course, the latest act of defiance is not an isolated breach of the president’s oath. The tax returns are actually more relevant to Congress’ oversight function than they would be for a law-abiding, norm-preserving president. Matz argues that “since taking office, President Trump has engaged in exceedingly irregular conduct, both at home and abroad, that makes his financial entanglements highly relevant to subjects firmly within Congress’s investigatory purview — including (but not limited to) national security, foreign affairs, tax policy, regulatory priorities, abuse of power, and the prohibition on acceptance of foreign and domestic emoluments.” Matz explains, “The fact that Republicans allowed congressional oversight powers to wither and atrophy on their watch does not now entitle Secretary Mnuchin to disregard a proper exercise of those powers under Democratic control of the House.” He concludes, “There is nothing Nixonian about the House asking President Trump to honor an unbroken line of presidential precedent and release his tax returns; what’s Nixonian here is the suggestion, rife throughout the Trump administration, that this President is above the law.”
One hopes that the House does not put up with these shenanigans. Ways and Means should vote to issue a subpoena. If need be, the House must go to court to enforce the law and its status as a coequal branch of government.
Should the standoff go all the way to the Supreme Court, it will be interesting to see how Republican-appointed justices who pride themselves on being “originalists” and sticking to the text of statutes and the Constitution handle this case. It would be an easy case for the justices — especially if Chief Justice John G. Roberts Jr. can turn out a unanimous opinion (as the court did in the Nixon Watergate tape case) — to rebut the impression that they are hopeless partisans. And for Justice Brett M. Kavanaugh, whose independence and objectivity were thrown into doubt by his partisan rant during his confirmation hearing, a decision against the administration would be the first step in a much-needed personal rehabilitation.