During the 2016 election, Donald Trump became the first major Presidential candidate in recent history to refuse to disclose his tax returns, citing ongoing IRS audits. Since taking office, President Trump has indicated that he will continue to keep his tax returns secret, arguing 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 particularly 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 aren’t inclined to either 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 committee, 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.
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 aids attempts to pass or modify legislation.** 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.
For President Trump there are surely many, many legitimate legislative reasons that Congress can invoke to support inquiries related to his finances. 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, and Congress might 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, which Congress might wish to investigate.
However, as President Trump has himself been finding out in the litigation involving his immigration order, sometimes public comments can backfire, and the many intemperate public comments that Democratic legislators have made against him could taint any request they make for his tax returns. 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.
Though I do not have a crystal ball, I suspect President 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, independently of the President, could transmit those returns to a congressional committee, but the IRS takes everyone’s tax privacy very seriously. And though I can only speculate, I do not foresee IRS staff contradicting nondisclosure orders from the White House. One should also be reminded that while there were leaks from our national security agencies to the press during the last election season, the IRS never whispered anything about Trump’s taxes to anyone.
The calls for congressional committees to request Trump’s returns are also probably 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 the major 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.
President Trump’s future tax filings would be the proper target of inquiry, not pre-existing ones, unless one believes that the Obama Administration engaged in corruption regarding its audits. Also, though some previously-filed returns may be currently under audit, I do not have any reason to believe that IRS staff became corrupt on January 20, 2017. The specific IRS personnel entrusted to audit President’s Trump’s tax returns before inauguration should continue to receive our trust.
More generally, I would prefer that specific IRS personnel be kept out of this current political controversy, and I would encourage commentators not to target the JCT Chief of Staff regarding his powers under Section 6103(f)(2). Though my scholarship shows that I’m more than happy to criticize both the IRS and the JCT regarding their institutional features, 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.
*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). Yin argues that such disclosure must be limited to circumstances where a proper legislative purpose may be invoked. 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.