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.
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
*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.