President Donald Trump‘s tax returns have long been a source of fodder for White House critics–and campaign trail critics before that. A lawsuit being argued in federal court on Thursday in Washington, D.C. seeks to literally and figuratively re-litigate the issue.
Civil liberties advocacy group Electronic Privacy Information Center (EPIC) originally brought suit against the IRS in 2017, after the agency denied a Freedom of Information Act (FOIA) request seeking “Donald J. Trump’s tax returns for tax years 2010 forward and any other indications of financial relations with the Russian government or Russian businesses.”
The civil liberties organization lost the first round in the trial court with U.S. District Judge James Boasberg writing:
What plaintiff wants in this case is to peer into another person’s income-tax records. Although the court has no reason to doubt EPIC’s assertion that the return information on this particular individual—President Trump—would be of interest to the public, that fact does not give the organization a viable legal case.
Undeterred, the group’s appeal will now be heard by a panel of judges on the U.S. Court of Appeals for the D.C. Circuit. Operating on a theory of access under the nation’s foremost open records law, EPIC’s 65-page opening brief begins, “There has never been a stronger claim for the release of records in the possession of the IRS than the request, now before this Court, brought under the Freedom of Information Act for the disclosure of Donald J. Trump’s tax returns.”
After noting that every president in the post-Nixon era has released their tax returns except for Trump, the group’s argument continues with an appeal to public policy:
[W]ide-ranging concerns about conflicts of interests, unique to this Presidency, could be resolved with the public release of the President’s tax returns…President Trump’s tweets and statements regarding the contents of his tax returns have been plainly contradicted by his own attorneys, family members, and business partners…Congress specifically anticipated that there would be circumstances, similar to those now before this Court, that would permit the release of tax records without taxpayer consent.
The bulk of the legal wrangling, however, is likely to be confined to EPIC’s FOIA arguments–indeed these arguments are the genesis and legal basis for the lawsuit itself.
“Finally, the agency’s failure to process EPIC’s FOIA request disregards relevant facts in this case, is inconsistent with the agency’s internal rules and processing of a similar FOIA request from EPIC in the past few weeks, and is contrary to law,” the brief says.
The lawsuit more or less sets up an epic showdown between FOIA laws and IRS internal regulations.
Specifically, EPIC believes their request should be honored under a provision of U.S. tax laws which allow public disclosure “to correct a misstatement of fact.” The IRS is legally allowed to release individual tax records under those circumstances, however, approval must be granted by the Joint Committee on Taxation, a joint committee of Congress established under the Internal Revenue Code in line with the statute located at 26 U.S.C. § 8001.
In the original denial, Judge Boasberg pointed out that the taxation committee had not voted to release Trump’s tax returns and essentially claimed that the judiciary’s hands were tied. EPIC is arguing that it is incumbent upon the IRS to make the first move and begin communicating with the IRS about the potential release of records. In their brief, the group notes that speaking directly to the congressional committee is “not something in the power of a FOIA requester.”
Justice Department lawyers have reacted unfavorably to the lawsuit. In one response they argued that EPIC is trying to “use FOIA to make an end-run around the protections conferred upon the taxpayer.” The brief went on to note:
One can imagine all sorts of public figures who might be subject to having their return information made public under such an expansive exception to the confidentiality requirement.
Judges Karen LeCraft Henderson, Harry Edwards and Patricia Millett are slated to hear the appeal on Thursday.
[image via MANDEL NGAN/AFP/Getty Images]
Follow Colin Kalmbacher on Twitter: @colinkalmbacher
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