Trump lawyer sends letter to Treasury: You shouldn't hand over his tax returns to House Democrats

A strong letter, worth reading in full. Click on the images here to read the separate pages. There are legal arguments made and precedents cited but at the heart of it is a simple prudential question:

Why should Congress be able to use the IRS to gather dirt on its political enemies?

It’s true, the statute also gives the president power to demand the tax returns of individual taxpayer. And neither in that case nor in the case of a request from Congress does the law give the Treasury Department any power to say no. In both cases the statute says it “shall furnish” the returns, no exceptions. Unlike the president, Congress doesn’t even need to formally state a reason why it wants the returns. All it needs to do is demand them and, in theory, Treasury must comply. Hence today’s letter, an urgent attempt to make the case that no, actually, under existing case law and notwithstanding what the statute says, Treasury doesn’t have to comply.

The linchpin for that argument is a 1957 case, Watkins v. United States, in which the House Un-American Activities Committee demanded to know from a witness during testimony whether certain other people were members of the Communist Party. The witness refused to answer, arguing that such questions were outside the proper scope of the committee’s activities, and was held in contempt of Congress. The Warren Court ruled for the witness and vacated the conviction. Writing for the majority was Earl Warren himself:

Kilbourn v. Thompson teaches that such an investigation into individual affairs is invalid if unrelated to any legislative purpose. That is beyond the powers conferred upon the Congress in the Constitution. United States v. Rumely makes it plain that the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights. The critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by a public need that overbalances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual’s right to privacy nor abridge his liberty of speech, press, religion or assembly…

We have no doubt that there is no congressional power to expose for the sake of exposure. The public is, of course, entitled to be informed concerning the workings of its government. That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals.

You’ll hear a lot about Watkins in the months ahead, particularly given the political resonance of the context in which it was decided. Trump will spend the duration of the battle with House Democrats over his tax returns insisting that this is the new witch hunt. And the leading case he’ll point to in his favor is one that dealt with actual McCarthyism. A good talking point!

I’m eager to see how it plays out in court. Richard Neal and House Democrats will claim that the Watkins case doesn’t apply because Trump hasn’t been found in contempt of Congress or suffered any other penalty. They’re not seeking to violate his First Amendment or Fifth Amendment rights by compelling him to testify before the House, as was the case in Watkins. All they’re asking for is a copy of a document he was already required by law to provide, and did provide, under a statute that already authorized them to obtain that document. Trump, of course, will point back to the passage from Watkins quoted above and ask, “What legislative purpose is served by having my returns?” Why does the Ways and Means Committee, which sets national tax policy, need to know what’s going on with the president’s personal finances? You might counter by noting that Michael Cohen has accused Trump of various forms of fraud, including insurance fraud, and that Congress surely has an interest in preventing that. Which is true — in the aggregate, as a national matter. But individual cases of suspected fraud are handled by the DOJ and local federal prosecutors, not Congress. It’s easy to understand why the Southern District of New York might need to see Trump’s returns. Why do Democrats in the House need to see them?

But then Democrats have another comeback. Since when is Trump a stickler for narrow readings of government powers? If it were up to him, the president would have the power to do all sorts of things on his own say-so, starting with reappropriating funds already earmarked by Congress for other tasks in the name of addressing a “national emergency.” If we’re stuck with Trump’s assessment of whether there’s an emergency or not, why shouldn’t we be stuck with Neal’s assessment of whether there’s a valid legislative purpose here or not?

What this’ll boil down to if and when it arrives at the Supreme Court is whether there really is some enumerated-powers limitation in the Constitution to Congress’s authority to obtain tax returns, which would make the statute Neal’s trying to use invalid, or if this is one of those many, many, many situations where the statute sucks but there’s nothing unconstitutional about it per se. Unquestionably, it’s terrible policy for the law to allow politicians to access their enemies’ tax returns. (And rest assured, Trump will request the returns of dozens of Democrats if the Dems succeed in getting his.) But not all terrible policy is unconstitutional. SCOTUS may end up shrugging and essentially saying, “It’s up to Congress to repeal or amend bad laws, not us.” Which will be cold consolation to Trump, as it’ll mean Dems get the returns after all.