Can Congress Get President Trump’s Tax Returns?

by Andy Grewal — Monday, Feb. 13, 2017

During the 2016 election, Donald Trump became the first major Presidential candidate in recent history to withhold his tax returns, citing ongoing IRS audits. After taking office, President Trump has said that he will continue to keep his tax returns secret. He believes that only the media, and not the voters, care about them. 

In a recent Washington Post article, Professor George Yin argues that Congress can force Trump to make his returns available for legislative review. Legislators have embraced similar arguments. See Reuters (Feb. 10, 2017). Representative Pascrell, in particular, has been vocal on this issue. See USA Today (Feb. 11, 2017).

The statutory authority* for any congressional requests would probably come from Sections 6103(f)(1) & (2) of the tax code. Under (f)(1), some committees of Congress can request disclosure of Trump’s returns and can examine those returns privately. Under (f)(2), a non-partisan career official, the Chief of Staff of the Joint Committee on Taxation (JCT), may also request and privately examine those returns. Professor Yin argues that information obtained through Section 6103(f) can be subsequently disclosed to the public, when public disclosure serves a legitimate legislative purpose.** 

As a political matter, these proposals are a long shot, whatever their independent merits. Republicans control congressional committees and probably won’t request President Trump’s tax returns or publicly disclose them. And though the JCT Chief of Staff is nonpartisan and can request Trump’s tax returns, he cannot independently disclose those returns. Only the full JCT, controlled by Republicans, can do so.

Even if a congressional committee requests President Trump’s tax returns from the IRS, President Trump may have a constitutional defense to disclosure. That is, although Section 6103(f) is phrased in absolute terms — it allows tax committees and the JCT Chief of Staff to obtain tax return information, without qualification — any congressional action, including requests for information, must come within the scope of legislative powers granted by Article I of the Constitution. And a request for President Trump’s tax returns, if made for purely political purposes, may exceed legislative powers. (Update:  For my full length law review article on the subject, see here:  The President’s Tax Returns). 

As the Supreme Court explained in Watkins v. United States, “there is no congressional power to expose for the sake of exposure.” Rather, if Congress wants to collect information from the executive branch or other outsiders, it must do so in connection with its legislative power. That is, a Congressional attempt to investigate an official or request information from him is valid only to the extent it serves proper legislative purposes.*** Congress cannot simply engage in “a fruitless investigation into the personal affairs of individuals.” Kilbourn v. Thompson, 103 U.S. 168, 195 (1880). Thus, for example, it seems unlikely that Congress could properly request the tax returns of all civil rights leaders solely for the purpose of harassing them, even if there were potential non-discriminatory reasons for making those requests.  

There are, however, various proper legislative inquiries that Congress can make regarding President Trump. These inquiries may easily relate to his finances, even if not necessarily to his tax returns. For example, there are some lingering ethical issues related to the President’s plan to separate himself from the Trump Organization, as explained by Professor Milan Markovic here. Congress might thus want to examine some of Trump’s financial information as it considers whether to amend ethics statutes. Also, the Foreign Emoluments Clause raises potential constitutional problems for President Trump, and Congress might wish to investigate those problems.

However, as President Trump has himself found out through litigation involving his immigration order, public comments can sometimes backfire. The many intemperate public comments that Democratic legislators have made about Trump’s tax returns could taint any request they make for them. That is, if the power balance shifts in Congress and a Democrat-controlled tax committee requests the President’s tax returns, President Trump may be able to properly disregard that request, if he correctly believes that the request is supported only by personal animus and not a proper “legislative purpose.”  See Watkins v. United States, 354 U.S. 178, 200 (1957).

Though the President’s actions remain unpredictable, it seems likely that Trump would refuse any congressional request for his tax returns, just as he has repeatedly refused public and media requests for them. It’s theoretically possible that the IRS, in defiance of the President, would transmit those returns to a congressional committee. But the IRS takes everyone’s tax privacy very seriously. It thus seems unlikely that the IRS would defy nondisclosure orders from the White House. Also, though there were media leaks from our national security agencies during the last election season, the IRS never whispered anything about Trump’s taxes to anyone. The IRS will not disclose sensitive taxpayer information unless the law compels it to do so.

The congressional interest in Trump’s returns is also premature. Currently, the IRS has only those returns that President Trump submitted to Obama’s IRS (and Bush’s IRS, and Clinton’s IRS, and so on). But conflicts of interest questions arise not when a President has submitted his tax returns to prior administrations, but when he has submitted them to his own.

Thus, President Trump’s future tax filings should be the proper target of any inquiry. Existing ones should not, unless Congress believes that the Obama Administration acted corruptly regarding Trump’s returns. Though some returns filed during the Obama Administration may remain under audit during the Trump Administration, there is no reason to believe that the IRS staff in charge of those returns suddenly became corrupt on January 20, 2017. We trusted IRS staff to fairly audit Trump’s returns in the past, and we should continue to do so. 

More generally, specific IRS personnel should be kept out of this current political controversy. And commentators should not target the JCT Chief of Staff regarding his powers under Section 6103(f)(2). Though my scholarship reflects institutional criticism for the IRS and the JCT, dragging specific IRS or JCT personnel into a political fight strikes me as unseemly, given the seriousness and professionalism with which they perform their public duties.

Follow me on Twitter: @AndyGrewal

Related posts:

  1. The Battle For Trump’s Taxes and the President’s Potential Revenge”
  2. Congress Might Already Have Trump’s Taxes


*Technically speaking, the Article I legislative power establishes Congress’s authority to request information from the executive branch. Section 6103(f) thus does not “authorize” congressional requests, but rather reflects a codified rule of legislative procedure. See Congressional Research Service, Congressional Oversight Manual (Dec. 19, 2014)  (describing Section 6103(f) as a procedural limitation on, rather than a grant of, investigatory authority). However, for ease of exposition, Section 6103(f) will be referred to as authorizing tax return requests.

**Under Section 6103(f)(4)(A), “any return or return information obtained by [a tax committee] may be submitted by the committee to the Senate or the House of Representatives, or to both.”  This language has been understood as effectively allowing public disclosure of the return information obtained under 6103(f). Professor Yin argues that such disclosure must flow from proper legislative purposes. See Yin, Preventing Congressional Violations of Taxpayer Privacy, 69 The Tax Lawyer 103, 118-136 (2015).

***See Russell v. United States, 369 U.S. 749, 775-76 (1962) (Douglas, J., concurring) (Legislative “[i]nquiry is precluded where the matter investigated is one on which ‘no valid legislation’ can be enacted.”) (quoting Kilbourn v. Thompson, 103 U.S. 168, 195 (1880)).  Technically speaking, Congress’s investigative powers aren’t limited solely to the passage of legislation, but would also extend to other matters, such as impeachment.  Also, for example, Congress could properly request information if it wanted to examine whether a U.S. Official had complied with the foreign emoluments clause.

Numerous minor and stylistic updates were made to this post on November 1, 2018.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Andy Grewal

Law Professor, University of Iowa

14 thoughts on “Can Congress Get President Trump’s Tax Returns?

  1. Cindy Mattson

    What about 6103(f)(3). If Schumer could get three Republicans to side with the Democrats in the Senate and pass a resolution for the Senate Intelligence Committee to get the returns on the basis of their relevance to the investigation into Russian hacking, particularly in light of the Flynn resignation, at least the Committee would have them.

    1. Andy Grewal Post author

      Interesting proposal! Under 6103(f)(3), a majority of the Senate can vote to create a special committee to request tax returns. But note that under 6103(f)(4)(B), committees cannot make identifiable return information public — they can disclose to the full House or Senate only when they are sitting in closed executive session. This is different from 6103(f)(4)(A), which allows transmittal to the Senate or House generally, and is interpreted as describing the power to make the returns public.

    2. Kathy Jones

      I have read most of the documentation, laws, letters, etc. This author omitted a lot of important facts in this very one sided commentary.
      The case is TOTAL BS and they will never get his tax returns.
      Really, one does not have to be a ‘Philadelphia lawyer’ to figure this out.
      Just read.

  2. Terry

    I think it would be more interesting to know how so many rep. And senators got rich in office and never want to leave office. I am sure money comes in in strange ways maybe not legale.

  3. W Rainey

    Not sure if Congress actually has the constitutional rights to forcibly take the private information of an individual for the purpose of one political party’s desire….THAT is a very slippery slope ….I don’t recall Obama’s sealed educational records ever seeing the light of day….but if Trumps private returns are fair game, do Obama’s records and the private dealings of the Clintons become a fresh item?…

  4. Douglas Levene

    A few random thoughts: The law seems to authorize the tax committees to obtain individual tax returns. However, that must be done for a proper legislative purpose. Developing impeachment evidence is not a proper legislative purpose for the tax committees. What is the tax legislation-related purpose for looking at Trump’s tax returns? The Judiciary Committee, which can legitimately investigate grounds for impeachment, is not one of the committees authorized to request tax returns. In any event, this all sounds like it would be a couple of years worth of litigation before the Supreme Court finally gets around to resolving the issue.

  5. James. Unninghamj

    It seems the Democratic Congress is it more of a communist party than anything else when are people going to wake up that the Dems don’t give a damn about us people they just want to fight Trump I am sorry I am tired of all this is about time of the Democrats shut your mouse and get the legislating on things that are for us like shutting down the border

  6. Daniel Solomon

    Watkins, ckited as precedent, involved the right to invoke the 5th Amendment before a Congressional committee. It did not involve a tax return. Watkins did not choose to be a public figure. No cases are on point. In this case the President, a public figure involved in an investigation by the Department of Justice, publicly promised to realse his returns when he was a candidate. There is no impediment to doing so. Watkins did not involve records of income that might invoke the Foreign Emmoluments Act and did not involve whether the President had dealings with Russia ot Russian interests, after he had denied them. Both of these issues are valid subjects of Congressional oversight.

    In fact, enforcement of the Statute should invoke a mandamus to the IRS and to the Secretary of the Treasury, both currently in contempt of Congress for failure to perform a ministerial duty. They have no standing to object.

    The President should not have had the expectation of privacy. After all, he chose to run for his position.

    1. Derek

      It is not mandated by the constitution that a public official must turn over their tax returns. That part right there stops the rest of it. If it were mandatory to release them and he chose not to, they could subpoena them, but it’s not mandated.

  7. Sean Johnson

    I don’t see how Watkins applies here. Watkins says “[t]here is no GENERAL authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.” That means Congress can’t use its general oversight authority to hold a witness in contempt without a valid legislative function. That’s irrelevant when 6103(f) exists. Congress isn’t using its general authority but using the authority granted by statute as an exception to 6103(a). In fact, there is no general or constitutional rule that all tax returns must be confidential; the confidentially is created by the same statute that gives the exception to the rule! Not to mention, I don’t know of a single case on point that says the executive branch can unilaterally decide a legitimate legislative function.


    The president is not above the law, his tax returns need to surface and prove to America he has nothing to hide! It has been common practice for all elected presidents to reveal tax returns, Mr. Trump should not withhold the returns and show the voting public he is not above the law. America voted him into office, America can also vote him out.

  9. Patricia

    It was never “common practice”, just the last few Presidents. Consider the fact that these were all career politicians and they made sure to cover themselves. They’re financial misdealings are well hidden. They’ve been groomed forever.


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