POLITICO
Ways and Means Chairman Richard Neal demanded that the administration turn over over six years’ worth of President Donald Trump’s tax returns — but Democrats may face a tougher-than-normal situation with taxpayer secrecy rules. | Andrew Harnik/AP Photo
CONGRESS
Democrats face minefield if they get Trump’s tax returns
There will be a period, possibly lasting months, when Democrats will have seen the president’s taxes, but they won’t be able to talk about them.
By BRIAN FALER 04/05/2019 06:28 PM EDT
Democrats’ bid to seize President Donald Trump’s tax returns will come with some serious legal risk to themselves.
Lawmakers are concerned that, even if they get the president’s filings, his returns will still be protected by strict confidentiality laws — it is a felony, punishable by up to five years, to improperly disclose private tax information.
There are ways around the dilemma, and Democrats intend to make at least some information about Trump’s taxes public — that is much of the point of their entire effort. But that probably won’t happen right away. Lawmakers say they will likely take some time to examine his filings behind closed doors before making anything publicly available.
That means there will be a period, possibly lasting months, when Democrats will have finally seen the president’s long-hidden taxes — and they will be inundated with questions about what’s in them — but they won’t be able to talk about them. If they let anything slip, Republicans will surely jump, demanding an investigation by the Justice Department.
“We’re going to have to be circumspect in terms of the way we handle this,” said Rep. John Larson (D-Conn.), a senior member of the House Ways and Means Committee. “That’s the responsibility of every member.”
It’s a risk that’s been barely acknowledged in the battle over Trump’s returns, though it is one reason why Democrats have taken so long to formally request them.
Of course, Democrats have to get the returns first, and they’re a long way from that. Ways and Means Chairman Richard Neal (D-Mass.) demanded this week that the administration turn over six years’ worth of Trump’s individual and business tax returns, giving them a deadline of April 10.
The administration has indicated it plans to fight the demand in court.
“From what I understand, the law is 100 percent on my side,” Trump said Friday.
That Democrats may have to keep Trump’s taxes secret for a time has been largely overlooked in the debate over the returns, probably because of a misconception of how the law Democrats are tapping works.
They are relying on a statute that allows the heads of Congress’s tax committees to examine anyone’s confidential taxes. Advocates of the effort emphasize that the law says the Treasury Secretary “shall” hand over any requested returns.
But that’s just the question of whether the administration must give up the documents — even if Trump’s returns are handed over, they will still be protected by privacy laws. Making them public will be a separate matter.
Donald Trump
WHITE HOUSE
Trump on House getting his tax returns: ‘They’ll speak to my lawyers’
By REBECCA MORIN and ANITA KUMAR
Experts say lawmakers can do that by essentially having the Ways and Means Committee vote in a closed session to release them.
Though Democrats haven’t worked out exactly how they’ll proceed, there’s likely to be some time between when they receive the returns and when they consider divulging them.
There seems to be a “false presumption” that lawmakers will simply release the returns the moment they get them, said Rep. Lloyd Doggett (D-Texas), another Democratic tax writer who has helped lead the push to get the president’s returns.
“There is a need for a thorough review of them to see if there’s anything in them that justifies releasing them and that’s something that could take awhile to do because they are, according to the president, very complex,” he said. “I hope it’s not months, but I don’t think it will be days.”
“Until such time as that review is complete and a vote is taken to forward them to congress and the public, they will be protected.”
Democrats may want to redact certain information from the returns. Trump’s filings could reveal private information about other people he’s in business with who are of little interest to lawmakers, for example.
Tax veterans say the period between when Democrats get Trump’s returns and if and when they release something will be stressful for lawmakers, given the criminal penalties for even inadvertent disclosure. Democrats won’t be able to discuss even basic things about Trump’s returns, like how much he paid in taxes, what he reported earning or if he gave to charity.
“When we’ve had members in these situations before, we frequently have members say, ‘I don’t know if I want you to tell me or not, because I don’t know if I can trust myself not to say anything,'” said Rick Grafmeyer, a former deputy head of the bipartisan Joint Committee on Taxation and expert on taxpayer privacy laws.
Tax writers typically use their power to examine private tax returns to help inform the policymaking process. If they are trying to write legislation outlawing a corporate tax shelter, for example, they might look at an individual company’s tax documents to better understand how the dodge works.
Some say Democrats’ situation will be tougher than what most lawmakers deal with when it comes to taxpayer secrecy rules. Everyone will likely know Democrats have Trump’s returns and lawmakers would be besieged with questions from reporters, constituents and other lawmakers. That’s a lot different than when lawmakers quietly examine an oil company’s tax return.
Also, the Ways and Means Committee is loaded with new members who aren’t steeped in the intricacies of the tax secrecy rules — the closest analogue many say is when lawmakers received classified intelligence briefings.
“I’m sure that there will be briefings about all the ethical issues that surround this,” said Larson.
Many of the details of how exactly Democrats would handle the returns have not been worked out.
Neal could keep Trump’s documents to himself and a few close aides — and not even let other members of his panel see them. He has already said he won’t share the returns with any other committees, including the Judiciary and Oversight panels, which have been conducting their own high-profile investigations of the administration.
That would keep the circle of people who’ve seen Trump’s taxes tight — and the more people who see the returns, the more likely there will be leaks.
But many of his colleagues have been clamoring for the president’s returns for months, and will surely be unhappy to learn they won’t be able to examine them.
Another option: Lawmakers turn the filings over to the JCT and ask its staff of tax experts to analyze Trump’s returns and report back on what they find.
“They’re going to have to think carefully about how they’re going to want to do this,” said Dean Zerbe, a former Senate tax aide. “The penalties are certainly quite real.”
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The New York Times
Trump Lawyer Asserts President’s Right to Keep Tax Returns Private
Congress requested six years of President Trump’s tax returns from the I.R.S.CreditAl Drago for The New York Times
By Nicholas Fandos and Maggie Haberman
April 5, 2019
WASHINGTON — President Trump’s personal lawyer on Friday asserted Mr. Trump’s right as a citizen to keep his tax returns private and told the Treasury Department not to hand the returns over to House Democrats, foreshadowing what has the potential to be a far-reaching legal fight that could reach the Supreme Court.
The lawyer, William S. Consovoy, argued that Democrats who have demanded to see Mr. Trump’s tax information had no legitimate legislative reason to request it and that Representative Richard E. Neal’s decision this week to ask for six years of the president’s personal and business returns flouts “fundamental constitutional constraints.” He also called it a “gross abuse of power.”
“Even if Ways and Means had a legitimate committee purpose for requesting the president’s tax returns and return information, that purpose is not driving Chairman Neal’s request,” the lawyer wrote, referring to Mr. Neal, Democrat of Massachusetts, who leads the House Ways and Means Committee. “His request is a transparent effort by one political party to harass an official from the other party because they dislike his politics and speech.”
[Read the lawyer’s letter.]
Mr. Consovoy’s views have no direct bearing on the case. The little known tax code provision employed by the Democrats in demanding Mr. Trump’s returns says only that the Internal Revenue Service “shall furnish” the information, giving it and its parent agency, the Treasury Department, little leeway in deciding how to respond.
Democrats anticipate that the Trump administration could present an argument similar to the one made on Friday by Mr. Consovoy, namely that Mr. Neal’s request lacks a legitimate legislative purpose and, based on past court precedent, must respect Mr. Trump’s right to privacy.
Nonetheless, the length and forcefulness of Mr. Consovoy’s letter underscores what is at stake for a president who has defied modern political norms by refusing to voluntarily release his tax returns. If Mr. Neal prevails and gains access to the president’s long-hidden returns, it would allow Democrats for the first time to peek past Mr. Trump’s public claims about his wealth and investments and into the heart of his personal and business finances.
The I.R.S. and Treasury Department have given no indication of how they view the request since it was made on Wednesday. Steven Mnuchin, the Treasury secretary, told Congress last month he would consult with his legal team and follow the law when a request was made. He will most likely face questions about the request again next week when he returns to Capitol Hill to discuss the department’s budget.
Mr. Trump has indicated in recent days that he is ready to fight to keep his financial information private. Asked on Friday if he was confident he would succeed, Mr. Trump offered an ambiguous prediction.
“Oh, I don’t know,” he said. “That’s up to whoever handles it. I don’t know. Hey, I’m under audit. But that’s up to whoever it is. From what I understand, the law is 100 percent on my side.”
Mr. Neal made the request through an obscure but frequently used provision of the federal tax code — Section 6103 — that allows Congress’s tax-writing committees to view tax information on any filer. The authority is regularly used by the committee to confidentially measure how changes to the tax code would affect different types of taxpayers. It has been used for more investigative purposes, as well, most recently in 2014, when committee Republicans obtained and publicly released tax information as part of an investigation into whether the I.R.S. discriminated against conservative entities seeking tax-exempt status.
But there is little precedent for using it to examine the returns of a president without his consent.
Mr. Neal gave the I.R.S. until next week to comply. If it does not, the House could go to court to try to enforce the request — a process that legal experts said could take years to sort out.
“The Supreme Court has flagged twice now that it is unclear as to whether a congressional committee can sue the president and force the executive branch to do something,” said Andy Grewal, a University of Iowa law school professor. “I think we are a very long way from getting an answer over legitimate legislative purpose.”
After months of speculation, the back-and-forth was initiated on Wednesday when Mr. Neal formally requested that the I.R.S. hand over six years of Mr. Trump’s personal and business tax returns as part of what he said was a committee oversight investigation of tax law enforcement. Even if Mr. Neal does get access to the information, it would not automatically become public because the committee would have to vote to disclose anything it sees.
In making his request, Mr. Neal jettisoned issues, like possible tax fraud, that Democrats have warned that Mr. Trump may be hiding, instead saying that he wanted to examine audit procedures for a president.
Mr. Neal worked closely with House lawyers to prepare the request to hold up against legal challenge. He framed the request as part of the Ways and Means Committee’s oversight of “the extent to which the I.R.S. audits and enforces the federal tax laws against a president.” Under I.R.S. policy, the personal tax returns of presidents and vice presidents are supposed to be automatically audited each year.
“This request is about policy, not politics,” Mr. Neal said at the time. “My preparations were made on my own track and timeline, entirely independent of other activities in Congress and the administration.”
Daniel Rubin, a spokesman for Mr. Neal, declined to comment on Friday’s letter.
Mr. Consovoy said that Mr. Neal’s stated justification only thinly veiled what Democrats were really after: political gain. They have demanded for years that Mr. Trump release his tax returns, Mr. Consovoy argued, and they promised to use the House majority to find out whether the president had undertaken financial fraud.
“Once this Pandora’s box is opened, the ensuing tit for tat will do lasting damage to our nation,” Mr. Consovoy wrote.
Though he was defending Mr. Trump’s privacy rights as a taxpayer, his arguments also closely mirrored those used by Republicans in Congress who have argued against making the request.
“If Chairman Neal genuinely wants to review how the I.R.S. audits presidents, why is he seeking tax returns and return information covering the four years before President Trump took office?” Mr. Consovoy asked. “Why is he not requesting information about the audits of previous presidents?”
Mr. Consovoy’s argument bears similarity to one made by other Trump lawyers throughout the course of the obstruction of justice investigation led by the special counsel, Robert S. Mueller III. In that case, the president’s lawyers repeatedly argued that he did not lose his rights as a citizen by dint of being the commander in chief. Those included his rights to free speech, his lawyers argued, a point echoed in the letter sent on Friday.
Mr. Grewal said he thought Mr. Consovoy raised a valid objection about the legitimacy of Mr. Neal’s investigation, but cautioned that his letter was “part of public relations and advocacy, as opposed to any kind of official action” that would affect the case.
George K. Yin, a tax law professor at the University of Virginia, disagreed. He said Mr. Neal’s argument was cleverly framed, particularly in light of a relevant past use of Section 6103 by Congress in examining whether President Richard M. Nixon had properly paid his taxes.
“There is an inherent conflict of interest when the agency is responsible for auditing its boss,” he said.
Facing questions about his own tax obligations, Nixon asked Congress to investigate whether he had taken improper tax positions as president. Using materials he handed over and referencing Section 6103, Congress found that despite being audited by the I.R.S., Nixon had significantly underpaid.
After Nixon and his immediate successor, Gerald R. Ford, all American presidents until Mr. Trump voluntarily released their taxes.
Nicholas Fandos reported from Washington, and Maggie Haberman from New York. Zach Montague contributed reporting from Washington.