The Washington PostDemocracy Dies in Darkness

Opinion The nightmare scenario for Democrats on Trump’s corruption

(Jabin Botsford/The Washington Post)

The administration’s categorical refusal to release President Trump’s tax returns heightens the difficult question Democrats face, and raises the prospect of a nightmare scenario — both in political and substantive terms.

Democrats must now choose between continuing to pursue the returns through conventional channels, which carries some risk of failure, and getting serious about impeachment hearings, which would likely minimize that risk to the greatest extent possible.

If Democrats go with the first, it raises at least the possibility that they could squander months in court, only to fail to secure Trump’s returns at the end — at which point they’d decide it’s too late to pursue impeachment, because 2020 would be looming.

To be sure, there are many other reasons to initiate an impeachment inquiry, beyond overcoming resistance to releasing the returns. But this dispute throws the broader choice Democrats face into sharper relief.

The Treasury Department has declared that it will not release Trump’s tax returns to the House Ways and Means Committee. This appears to violate the law, which says the returns of any individual “shall” be furnished upon request by tax-writing committees.

Democrats on Ways and Means now have two leading options, according to Steve Rosenthal, a senior fellow at the nonpartisan Tax Policy Center.

Democrats can subpoena the Treasury Department for the returns, or they can sue to force the department to comply with the law, or both, Rosenthal tells me.

But either of those two paths would likely require a lengthy court battle — one that Democrats might lose before the Supreme Court.

The legal case for getting the returns appears strong. In requesting Trump’s personal and business returns, Rep. Richard E. Neal (D-Mass.), the chair of Ways and Means, argued that Congress needs them to scrutinize whether the IRS is enforcing tax laws against the president. Thus, Neal furnished a legislative rationale that the law doesn’t even appear to require.

Former Democratic presidential candidate calls for Congress to be "deliberate, fair and fearless." (Video: Danielle Kunitz, Kate Woodsome, Joshua Carroll/The Washington Post)

But that doesn’t mean the legal case for getting them is airtight. Rosenthal says that in either case, the Supreme Court could side with Trump, by arguing that Democrats “are applying the statute unconstitutionally.”

In this telling, the court would rule that Congress’ power to solicit tax returns is not unlimited, and cannot be applied for illegitimate purposes. The court could decide Democrats are “just rummaging through Trump’s returns to embarrass him and not for a legitimate legislative purpose, and that Neal’s explanation is a pretext,” Rosenthal told me.

Daniel Hemel, a professor at the University of Chicago Law School, agrees. He told me the court could rule that the statute “can’t sweep more broadly than Congress’ constitutional authority,” which “doesn’t include the power to investigate except for legitimate legislative purposes.”

To be sure, Democrats could win this battle, both experts said, because they actually do have multiple legitimate purposes for getting the returns. But this is hardly guaranteed, particularly with this court. And it could take months or years.

The bottom line: A loss, coming next fall or later, is at least possible. And at that point, Democrats would likely be even more reluctant to launch impeachment hearings, with 2020 right around the corner.

This would constitute an epic, disastrous failure. Not getting Trump’s returns would allow him to get away with one of his most blatant acts of contempt for transparency, for the separation of powers and for the notion that basic accountability should apply to him at all.

And we simply don’t know how much corruption — from tax fraud to emoluments clause violations to compromising foreign financial entanglements — this might end up concealing from view.

Impeachment hearings could strengthen Democrats’ hand

The idea here is that, if Democrats were to initiate an impeachment inquiry, it would create a legislative purpose for compelling release of the returns that is basically unassailable — that legislative purpose being impeachment.

“I think Ways and Means’ argument is fundamentally solid,” Rosenthal said. But he added that if Democrats stressed that an impeachment inquiry were its purpose, “I don’t see how any information can be withheld — the Mueller report, tax returns, anything. This would make it airtight.” Other legal experts agree.

It’s possible that Democrats might not even have to go this far. They could potentially state that they are soliciting information for the express legislative purpose of deciding whether to launch an impeachment inquiry, Rosenthal says.

That latter possibility needs more expert attention. But the bigger point here is that more forthrightly embracing an impeachment inquiry as a key rationale — immediately, or the question of whether to launch one — very well might strengthen Democrats’ hand.

This is the case not just on Trump’s tax returns, but also in other areas, as Rosenthal points out. That includes empowering Democrats to fight against efforts to conceal the unredacted Mueller report; and efforts to prevent former White House counsel Donald McGahn, who witnessed extensive obstruction of justice, from testifying, and possibly special counsel Robert S. Mueller III as well.

“Congress’ hand is strengthened across the board by acknowledging that the information is relevant to a possible impeachment inquiry,” Rosenthal tells me.

Jonathan Bernstein argues the contrary case: This is a contested view; Democrats might prevail on some fronts without impeachment; they can employ other tools.

It’s true this is a contested view. But that means it might prove correct, and the question still remains whether Democrats will at least try to use all the tools at their disposal, and what the dangers are in not doing this. The argument isn’t necessarily that Democrats must launch an inquiry right this second. But it must be put on the table clearly as a point toward which they are converging out of necessity, in response to Trump’s worsening abuses.

Democrats (and other impeachment skeptics) need to more forthrightly engage with the argument that the failure to do this could end up with Democratic oversight mostly being neutered, with no remaining options.

Yes, Democrats could then beat Trump in 2020. But what if they don’t, after having seen their oversight efforts largely blocked, and having failed to exercise all the powers they have at their disposal?

Read more:

Brian Klaas: It’s time to start impeachment hearings. Today.

James Downie: The wonderful illogic of Trump’s hidden tax returns

Paul Waldman: Trump’s tax return scam has taken yet another turn

Paul Waldman: Getting Trump’s tax returns is only the beginning

Greg Sargent: The case for getting Trump’s tax returns just got stronger — and more urgent