Among the issues the court may consider is whether the 1924 law that Democrats are using to obtain Trump’s returns requires a “legitimate legislative purpose,” which Treasury Secretary Steven Mnuchin said Ways and Means Committee Democrats lacked in a May 6 letter. Also at issue is whether a recent Supreme Court ruling, which cited a pretext in freezing the addition of a citizenship question to the 2020 Census, could block Ways and Means Committee Chairman Richard E. Neal (D-Mass) from getting Trump’s taxes.
On Tuesday, Neal merged his two-pronged legal approach — he is pursuing the returns simultaneously via congressional subpoena and section 6103(f) of the Internal Revenue Code — into one lawsuit. Steve Rosenthal, a senior fellow at the nonpartisan Tax Policy Center, and Daniel Hemel, a professor at the University of Chicago Law School, both said combining the subpoena and statute into one lawsuit helps Neal’s case.
“This is not like the SAT test; you don’t lose points for wrong answers,” Hemel said, adding that the success or failure of one legal argument has no bearing on the success or failure of the other.
Unlike congressional subpoenas, which require a legislative or oversight purpose, section 6103(f) of the U.S. Code simply says the Treasury Secretary “shall furnish” tax return information upon written request by any of the three tax-writing committees.
In calling for Trump to hand over his returns, congressional Democrats have often been careful to avoid tying Neal’s request to politics, which was a motive Mnuchin ascribed in an April 23 letter while acknowledging that the Treasury Department would miss a second congressional deadline to produce Trump’s returns.
“It is not clear to us that the Executive Branch must always accept a pretextual legislative justification as constitutionally adequate, in the face of widespread, contemporaneous acknowledgment by the Committee Chairman and other key Members that the actual objective is to use the IRS as a means to expose the tax returns of a political opponent,” Mnuchin wrote.
But even if the committee’s legislative or oversight purpose were political, it may not preclude Congress from getting the returns.
“There is not any question that there’s a legitimate purpose,” Rosenthal said in an interview. “Just because Neal harbors some political motive . . . that doesn’t implicate anything. Of course Congress acts politically.”
University of Virginia law professor George K. Yin, who has previously consulted with members of Congress on Trump’s taxes, told The Fix in May that 6103(f) may not even require a legislative purpose at all.
“There is an argument that the purpose of the request made by Chairman Neal is not a relevant issue in this specific situation,” Yin said. “Both the statute — the plain language of the statute — and the background of the statute would support an argument that purpose is just not an issue. The only question is access.”
Others disagree. Tulane Law School adjunct professor Ross Garber said the case is unlikely to succeed in part due to the committee’s motives for seeking the returns.
“The question is: Is the way the statute is constructed constitutional?” Garber said in an interview. “If Congress were invoking its impeachment authority . . . Congress might have a much more powerful case.”
Hemel said pretextual motives that the Supreme Court ruled on in the census case would be relevant only if the Ways and Means Committee argued that Mnuchin pretextually blocked Trump’s returns.
“There’s no requirement that Congress state a reason for its actions,” Hemel said. “The census ruling simply doesn’t apply in the congressional context.”
There’s not much case law on 6103(f), which further complicates how courts might rule or what precedents might be set.
The last time Congress asked for the tax information of a sitting president, it was voluntarily provided to the Joint Committee on Taxation by President Richard M. Nixon, who told reporters at the time: “People have got to know whether their president is a crook. Well, I’m not a crook. I’ve earned everything I’ve got.”
Four months later, congressional investigators found Nixon owed more than $400,000 in back taxes to the IRS.