Trump Wins Round One In Battle Over His Tax Returns
The Wall Street Journal reports Supreme Court Suspends House Subpoena Seeking Trump’s Financial Information.
The Supreme Court granted President Trump’s emergency request to suspend enforcement of a congressional subpoena seeking his financial records from his accounting firm, a move that could keep the documents from House Democrats for months—if they see them at all.
But in tandem with blocking the subpoena for now, the court signaled Mr. Trump would have to move quickly with his appeal, ensuring the president can’t delay proceedings through the 2020 election.
One of Two Things
- At least five justices found that the appeal had a likelihood of success on the merits and the appellant would experience irreparable harm if the state was not granted. Those five justices, and possibly more, may be favorably disposed to reversing the lower court decision.
- It might just mean that five members of the court Wanted to have sufficient time to carefully consider this, which they think is an important issue.
Nothing Decided Yet
All we can say at this point is that nothing is decided. But this was a at least a temporary victory for Trump. The court could have left the lower court ruling stand.
Heart of the Legal Battle
A Yale University blog on Administrative Law & Regulatory Practice asks Can Congress Get President Trump’s Tax Returns?
The article was written in 2017 so the second paragraph excerpted below is completely inaccurate, but the rest discusses the legal merits in general.
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.
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.
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).
There is no congressional power to expose for the sake of exposure. Thus, if Trump can persuade the court this is a political witch hunt, the Supreme Court will toss the lawsuit on those grounds.
The court might decide in favor of Trump anyway, for other reasons.
On the other hand, there is an ongoing impeachment investigation in which Trump's finance could apply. But then again, the request for his returns pre-dates the impeachment investigation.
Finally, did Trump again manage to say something in public comments that could backfire? That is always a possibility.
In conclusion, there are a huge number of reasons the Supreme Court might have wanted to hear the case, not just rubber stamp a victory from Trump.
But, the fact the Supreme Court will the case at all is a good thing for Trump and a bad thing for the Democrats, at least compared to the alternative.
Mike "Mish" Shedlock