For it to be resolved by fall 2020 would amount to Democrats drawing a possible but improbable legal “perfect straight,” according to Harry Sandick, former assistant U.S. attorney for the Southern District of New York.
House Ways and Means Committee Chair Richard E. Neal (D-Mass.), whose panel is leading the pursuit of Trump’s returns, has also thus far opted not to pursue Trump’s state returns despite a new law in New York giving them the authority to do so.
Neal has stressed that his lawsuit, which was filed after the Trump administration refused a subpoena for the tax returns, is motivated by the need to conduct oversight of the administration rather than politics or the timing of the election. Neal has led a deliberative probe for the president’s records, relying closely on legal counsel, although he has faced internal criticism from lawmakers for moving too slowly.
This week, attorneys for the House panel asked the judge to expedite the case. But even some Neal allies are growing pessimistic.
“It’s hard to predict; we’re going to push” to get the returns before the 2020 election, said Rep. Daniel Kildee (Mich.) of the Ways and Means Committee, who has defended Neal and says Democrats should continue pursuing Trump’s tax returns after the presidential election. “It’s just, given the amount of time it takes for cases to move — unless the court makes a decision that these arguments are not complicated, and they’re going to expedite — it’s going to be tough. ”
Another House Democrat involved in oversight, who spoke on the condition of anonymity to talk candidly, said of the case stretching beyond the election: “That’s exactly my fear. … This painstakingly slow process may prove detrimental to us getting the returns by next November. ”
A spokesman for Neal declined to comment, but the chairman has emphasized for months that he did not want to rush, creating a sloppy case that would be thrown out by a federal judge. Several other Democratic lawmakers and aides on the committee, including Rep. Bill Pascrell Jr. (D-N.J.), defended Neal’s strategy.
The uncertain timing of the case increases the odds that Trump will vie for reelection without divulging his personal tax returns, as presidents and presidential contenders have done since the 1970s. The leading Democratic presidential candidates have released their tax returns.
Trump repeatedly promised to release his returns while running for president in 2016, saying he could not do so at the time because he was under audit.
Since his election, Trump has argued that the tax returns should no longer be a matter of public concern because he won the 2016 election. The president has told advisers he will battle the issue to the Supreme Court, despite a 1924 law that explicitly gives the chair of the House tax-writing panel authority to receive the documents.
The Trump administration has argued that Democrats’ request for Trump’s tax returns amounts to an effort to embarrass him for political gain, stating that the request also raises concerns of weaponizing the Internal Revenue Service for partisan aims.
The inability to secure the returns has disappointed supporters of impeachment, who have begun looking to the courts to move their investigations along after Trump stonewalled their probes.
Internally, some Democrats say that if they are going to impeach the president, they have to do so before the end of the year — but think that to initiate proceedings, they need more-significant findings that will move public sentiment in favor of ousting Trump.
House counsel Douglas Letter told lawmakers over the summer that the tax case could take much longer than some of them anticipated, dragging into 2020.
Meanwhile, there’s been a realignment of sorts regarding oversight priorities, according to one official deeply involved in the investigations of the president. While Democrats thought for months that the tax return request would be met quickly and easily pave the way for oversight victories, some of them are now looking to other court cases to secure wins sooner. Some Democrats, for example, say judges will soon rule in their favor upholding subpoenas for Trump’s financial information by the Financial Services and Oversight panels. They don’t expect those questions to go all the way to the Supreme Court.
Most House Democrats defend Neal’s strategy for pursuing the returns, as have several independent legal experts. But the complications have also triggered some griping about Neal, as legal experts and a handful of Democratic lawmakers have questioned his strategy for securing Trump’s federal returns.
Some liberal lawmakers — including Rep. Lloyd Doggett (D-Tex.), a member of the Ways and Committee; Rep. Pramila Jayapal (D-Wash.), co-chair of the congressional Progressive Caucus; and Rep. Raúl M. Grijalva (D-Ariz.) — have at times called for Neal to act more quickly. In July, Doggett said that the delay in suing for the records was “inexplicable” and that the lawsuit for the records “should have been done a long time ago. ”
Neal’s discomfort in confronting the Trump administration has been apparent in internal meetings of the Democrats on the Ways and Means Committee, according to the House Democrat involved in oversight and an aide to a House lawmaker on the committee speaking on the condition of anonymity to talk candidly without fear of professional repercussions. When discussing the subject of the tax returns, Neal frequently tells stories of bipartisan cooperation under former Ways and Means Committee leaders, particularly Rep. Dan Rostenkowski (D-Ill.), pining for an era of political comity that others on the committee believe no longer exists, these people said.
“You could just tell from his body language, and everything else since then, that he has no enthusiasm for dealing with the tax returns issue,” said one House Democratic lawmaker, who spoke on the condition of anonymity to candidly address the issue.
In an interview, committee member Pascrell said that he and Neal have not “agreed on a number of decisions” and that he asked the chairman “questions about the expedience and the delays I saw.” But Pascrell said he defended Neal’s approach overall.
“That path was chosen according to counsel because we thought it would be the best way to uphold the law and make sure we got the tax returns,” Pascrell said. “Believe me when I tell you, I’ve had reason to not support him. But in the overall picture, I think I am doing the right thing” by backing the chairman.
Kildee added: “I understand people’s frustration. … [But] there’s a tendency to focus that frustration on the person who has the responsibility to pursue this course. But I think it’s misplaced. He’s done this by the book because he knows it’s more [important] to get this right than to get it 30 days faster.”
Some legal experts have also questioned Neal for not yet requesting Trump’s New York tax returns, which could include an unprecedented look into his business dealings and a range of other personal information. On July 8, New York approved legislation allowing the Ways and Means Committee to request and receive Trump’s state returns.
For 15 days after that legislation passed, Neal could have had Trump’s state returns on a direct flight from Albany to Washington, said Daniel Hemel, a law professor at the University of Chicago. But that window closed after Trump’s personal attorneys sued New York to block the law July 23. On Aug. 1, a federal judge ordered New York not to release those returns while the lawsuit is pending.
There was no communication over that period, or during the drafting of the New York legislation, between House Democrats and New York state lawmakers, according to a source who spoke on the condition of anonymity to discuss internal negotiations.
“There was a clear window when Congress could have taken advantage of this legislation” that is now closed, said state Sen. Brad Hoylman, the New York legislator who wrote the law. “Their strategy around trying to obtain Trump’s taxes has left a lot of state Democrats scratching their heads. ”
Neal has said pursuing the New York returns could undermine the House’s argument in seeking the federal returns, which would provide a wider look into the president’s financial dealings.
The case is now filed in U.S. District Court. Regardless of the outcome at that level, it is likely to then be appealed to the D.C. Court of Appeals and from there to the Supreme Court. Each of those cases could take months.
“More likely than not, this will not get decided or argued until it’s too late for the election,” said Sandick, the former U.S. attorney.
Neal has never promised to resolve the tax returns case by a certain date. He has said the committee had to be deliberate to improve its odds of securing the returns, carefully constructing a case to demonstrate it had no choice but to sue the administration.
Neal has also consistently stressed he is following the advice of his lawyers, including on timing, and that his focus is on reviewing the IRS’s program for auditing the president and vice president.
Neal’s defenders say he is focused on building a case that Democrats can win in court, rather than rush unprepared into a lawsuit that gets thrown out.
“This is an example of some on the Democratic left being unrealistic,” said former congressman Barney Frank (D-Mass.), a longtime colleague of Neal’s. “I think [Neal] is skeptical of gestures that make us feel good but won’t go anywhere.”
The committee held a hearing on the tax returns issue in February. Neal requested the returns from the administration in April, then sent multiple letters with the administration before issuing subpoenas in May and a lawsuit in July.
Democrats also quickly passed through the House legislation requiring the president to disclose his tax returns, but that bill died in the Republican-controlled Senate.
“We had no way of anticipating how obstructive Trump would be in his personal capacity and as President,” a senior Democratic House aide, who spoke on the condition of anonymity to candidly address the party’s thinking, said in an email. “[Trump] is waging the most aggressive and expansive legal battle we’ve ever seen with Congress to conceal the truth from the American people.”