House Democrats on Tuesday sued for President Trump’s tax returns, marking the beginning of a high-stakes legal fight over his efforts to keep his taxes secret.
Ways and Means Committee Chairman Richard Neal (D-Mass.) filed suit in federal court to enforce a subpoena for the records rejected in May by the administration.
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Democrats are seeking six years’ worth of Trump’s returns under a 1924 law allowing the chairs of Congress’s tax committees to examine anyone’s confidential tax information. Democrats hope they will help answer a host of questions about Trump’s finances.
Trump has defied a decades-old tradition of presidents voluntarily releasing their returns, and his administration is fighting the effort to force his hand, arguing Democrats do not have a legitimate reason for seeking the information.
It is just one of a number of subpoenas the administration is now battling, in a larger war over congressional oversight.
The White House lost two court cases in May challenging Democrats’ efforts to obtain other information about Trump’s finances from Deutsche Bank and Capital One, as well as the accounting firm Mazars USA. In both cases, federal judges rejected similar arguments the administration made contending Democrats do not have a legitimate reason for demanding the records. The administration is appealing both decisions.
While the fight over Trump’s taxes could be lengthy, with the administration likely to try to drag out the proceedings beyond next year’s elections, some see signs the courts are trying to move quickly on the oversight challenges.
“They’re not unaware the administration is throwing up roadblocks at every conceivable opportunity and I think they understand that the system itself is under stress,” said Kerry Kircher, who was the House’s general counsel from 2011 to 2016 and deputy counsel from 1996 to 2010. “The judiciary is aware of the need for some expedition here, and that we can’t go through the usual processes where it takes a couple years for these cases to work themselves out.”
In its fullest explanation of its decision to defy Neal’s subpoena, the Justice Department said last month that there are limits to congressional oversight and that lawmakers must have a purpose for their inquiries related to their official duties as members of Congress.
The department argued that the reason Democrats give for wanting Trump’s tax returns – so they can vet an IRS policy of automatically auditing every president – is balderdash and that the real reason they want the returns is to make them public, which “is not a legitimate legislative purpose.”
“While the Executive Branch should accord due deference and respect to congressional requests, Treasury was not obliged to accept the committee’s stated purpose without question, and based on all facts and circumstances, we agree the Committee lacked a legitimate legislative purpose for its request,” Steven Engel, an assistant attorney general, wrote in a 33-page brief.
Some legal experts are skeptical of that argument, noting the courts have long given Congress broad leeway when it comes to its investigations.
The administration will probably have other, more procedural objections at the outset of the case, experts say.
One is likely to be that Democrats do not have legal standing to sue because they have other ways of getting the returns, such as passing legislation or withholding funding from the executive branch. The White House won a case last month in which a judge determined Democrats did not have standing to sue the administration over its plan to bolster security along the border with Mexico by redirecting money Congress had appropriated for other purposes.
“The Justice Department will argue that controversies between the executive branch and Congress are usually settled between them by their powers, and that the court shouldn’t get involved,” said Charles Tiefer, a former acting general counsel for the House who now teaches at the University of Baltimore’s law school.
The administration may also contend that there isn’t way to enforce the 1924 law cited by Neal since, even though it says the Treasury secretary “shall” turn over returns upon request, it doesn’t say what happens if someone defies the law.
“Lawyers call it a ‘cause of action’ – it’s a claim that you can legally enforce,” said Kircher.
“There are lots of statutes that create rights and then glom enforcement mechanisms onto them,” he said. “This one doesn’t, and so it will take some creative lawyering on the part of the House lawyers to explain why a ‘cause of action’ should be read into that statute that obligates the Treasury secretary or IRS commissioner to turn over those tax returns.”
“That will be another piece of the initial litigation on whether the suit can even proceed,” he said.