The House Ways and Means Committee just brought the fight over President Donald Trump’s tax returns to federal court. Tuesday, the Committee filed suit against the Treasury Department and the Internal Revenue Service (IRS) demanding the release of the president’s financial records.
The lawsuit comes just two weeks after the Office of Legal Counsel (OLC) published an opinion supporting Treasury Secretary Steven Mnuchin‘s refusal to hand Trump’s ‘s tax returns over to Congress. Here are some key takeaways from the complaint:
1. The House is using Trump’s own words against him.
Pretty clever. Trump (and nearly everyone speaking on his behalf) has often lamented his mistreatment at the hands of, well, everyone. Instead of declaring Trump to be suffering from delusions of persecution, the House played along. It’s Congress’ job to make sure the IRS is doing its job properly, plaintiffs argued, and they need Trump’s tax returns to check that the system isn’t malfunctioning.
The Committee is investigating the IRS’s administration of various tax laws and policies relating to Presidential tax returns and tax law compliance by President Trump, including whether the IRS’s self-imposed policy of annually auditing the returns of sitting Presidents is working properly, even though it has not been updated in decades.
Perhaps the audit system really is “extremely unfair” as Trump has claimed – or maybe he really is being persecuted for being a Christian:
Candidate Trump stated that he “unfairly get[s] audited,” is “audited when I shouldn’t be audited,” and that, “I tell my people: Why is it that every single year, I’m audited, whereas other people that are very rich, people are never audited[?]” The reason for the frequent auditing, candidate Trump surmised, is “because of the fact that I’m a strong Christian, and I feel strongly about it and maybe there’s a bias.”
Yes, yes. Best that Congress check all this out, and they’ll be needing Trump’s tax returns to investigate.
2. In addition to focusing on the court of law, Congress is determined to win in the court of public opinion.
The narrative detailed in the complaint is pretty dramatic. Plaintiffs tell the story of unprecedented disobedience by government agencies:
Defendants have now—for what the Committee believes is the first time ever— denied a Section 6103(f) request in order to shield President Trump’s tax return information from Congressional scrutiny.
Detailing this “extraordinary attack on the authority of Congress” isn’t all; the Committee also reminded readers that the American people participate in our tax system. The attack on Congress is an attack on us all, they contend.
3. OLC is a big nobody in this equation.
The House was clear on its position: tax returns are Congress’ show. The OLC is a bit player in this show, and Congress isn’t about to take its word as gospel:
But Defendants, abetted by OLC, gravely misunderstand the operative law: The Committee’s power to conduct oversight and investigations is firmly rooted in Congress’s Article I legislative authority. And courts have long recognized that Congress’s “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” It is not for the Executive or the Judiciary to examine the Committee’s motivations for its oversight inquiries.
4. Congress made sure to mention Richard Nixon.
These plaintiffs weren’t about to squander the chance to make an official comparison between the current POTUS and Richard Nixon. The complaint is peppered with references to Nixon and his nefarious misdeeds. And those references aren’t just for analogy or anecdote. Nixon’s wrongdoing is the reason the IRS requires mandatory tax audits for presidents and vice presidents:
This policy was adopted in 1977 in the aftermath of an investigation by the Joint Committee on Internal Revenue Taxation concluded that President Nixon had filed erroneous tax returns while in office. The Joint Committee made these findings despite the fact that President Nixon had been audited by the IRS and even commended by the agency for the care taken in preparing his returns.
5. They’re determined to nip any Deutsche-Bank-style arguments right in the bud.
In lawsuits over other Trump financial disclosures, the president argued that congressional subpoenas were improper because they were not attached to any true legislative purpose. The House’s lawsuit over tax returns, however, bypasses that argument completely. Trump’s tax returns are necessary, it argues, because it’s Congress’s job to take charge of the tax code:
The Committee conducts ongoing and robust oversight of all aspects of the IRS and its administration of the tax code. The Committee routinely investigates the operations of the IRS, including collection, auditing, enforcement, taxpayer assistance, and activities during the tax filing season. It also examines the existing tax code and its implementation—including the IRS’s treatment of tax-exempt organizations, the “tax gap” between taxes owed and taxes actually paid, and tax law compliance by individuals and entities—to ensure that federal tax laws are being followed and fairly administered and to identify legislative improvements.
Although Trump’s argument – that Congress can’t do anything not directly related to pending litigation – failed in prior litigation, it has been completely closed out in this complaint. Congress isn’t exercising some derivative investigatory authority. It’s legislating, and this is what legislating looks like.
It remains to be seen, however, if Congress’s arguments will ultimately stand up.
2/ In Census case, there was an impermissible arbitrary/political/racial motive and a pretextual motive. SCOTUS rejected the pretext and the citizenship question (for now).
In House tax case, there are 2 real motives (high crimes and politics) and pretexts (e.g., audit process).
— Jed Shugerman (@jedshug) July 2, 2019
This fight could also drag out for years.
6. Congress called out Treasury for giving Trump special treatment.
According to the complaint, what’s going on with the Trump returns is wholly unprecedented:
The Committee is not aware of any instance—other than its request for President Trump’s tax return information (see infra II.C.-D.)—in which either Treasury or the IRS has failed to comply with the plain meaning of Section 6103(f) and provide information requested by the Committee.
In the Committee’s experience, Section 6103(f) requests are fulfilled by the IRS as a matter of course.
7. Congress is hoping that the looming 2020 election will convince the court that the need for Trump’s tax docs is urgent.
Wow … I was *not* expecting them to say this part out loud. pic.twitter.com/Z6k78olgPY
— Andy Grewal (@AndyGrewal) July 2, 2019
The House is requesting injunctive relief, which requires a showing of urgency. The next president might be just as unwilling as Trump to turn over financial documents, and this is a problem that needs fixing now:
The need for Defendants’ compliance with the Committee’s Section 6103(f) request and subpoenas is also urgent because much of the tax legislation under consideration would govern the next Presidential election. Multiple pending bills, if enacted, would mandate return disclosures by candidates for office during the fast-approaching 2020 election, and central to the contemplated legislation regarding the Presidential audit procedures set forth in the IRS’s Manual is the question of whether these procedures are sufficient to guarantee effective enforcement of the tax laws on the Chief Executive. By stonewalling the Committee’s information gathering, Defendants therefore are unlawfully impeding a legislative process that must proceed now for it to have its full intended effect.
Committee on Ways and Means v. United States Department of the Treasury, Internal Revenue Service, Steven T. Mnuchin, and Charles P. Rettig, was filed on Tuesday in United States District Court for the District of Columbia.
[Photo by Win McNamee/Getty Images]