By Sam Brunson
As we’re all acutely aware, in his presidential campaign, Donald Trump flouted decades of history by refusing to release his tax returns. And given that (a) the history was based on norms, not law, and (b) the Republican-controlled Congress did nothing to enforce the norms (or transform them into law), he continued to flout that norm throughout the first two years of his presidency.
But on January 3, 2019, Democrats will gain control of the House. And Democratic Representatives have made pretty clear that one of their first agenda items will be to request Trump’s tax returns. So does that mean we’ll finally get access to his tax returns?
Maybe. (But probably not.)
See, the Internal Revenue Code generally prevents the IRS—or any other officer or employee of the United States—from disclosing tax returns or return information. (And let’s take a moment to praise the IRS here: even while most of the Executive Branch is leaking like a sieve, the IRS hasn’t leaked Trump’s returns.) For a broad history of the confidentiality rules, take a look at Professor George Yin’s article “Preventing Congressional Violations of Taxpayer Privacy.”
In light of the confidentiality rules, there are basically, there are two routes that Democrats could use to get access to Trump’s tax returns. Both routes open up next year because Democrats will control the various House committees.
Committee on Ways and Means
The first route is a request from the Committee on Ways and Means. Section 6103(f)(1) says that if the chair of the Committee on Ways and Means makes a written request to the Secretary of the Treasury, the Secretary “shall” provide the requested tax returns and tax return information. There are limits, of course: to the extent that the information can be associated with or otherwise identify an individual, the information can only be provided to the Committee on Ways and Means when it’s in closed executive session, or when the taxpayer who would be identified consents. And honestly, I’m skeptical that Trump would consent.[fn1]
That doesn’t mean his returns couldn’t enter the public record, though. While the Committee on Ways and Means could only inspect Trump’s returns in closed executive session, the Committee could subsequently submit his return to the full House of Representatives, which faces no similar requirement to inspect the returns in closed session. Submitting the returns to the full House would, presumably, make them a matter of public record, and allow us, too, to inspect them. (In his article, Professor Yin points to this type of laundering as a problem, but suggests that Congress itself would have to act to prevent the abuses that could arise in this manner.)
So wait: if the Secretary shall disclose requested returns to the Committee on Ways and Means, and the Committee can give it to the full House, we’re set, right? Trump’s returns are ours?
Not so fast. Professor Andy Grewal argues that there may be a constitutional limit on the ability of the Committee on Ways and Means to request Trump’s tax returns. While the language of the statute says “shall,” Congress can only act within the scope of its Article I powers. And Article I doesn’t give it the power to expose for the sake of exposure. Rather, it seems to me, the Committee on Ways and Means would need to have some appropriate purpose for requesting his returns. And his returns don’t seem critical to drafting tax law. So, assuming Prof. Grewal is right, the first route may not work.
House Financial Services (or Other) Committee
But the Committee on Ways and Means isn’t the only House committee that can request tax returns; in fact, essentially any House committee can.[fn2] And most of the specific chatter I’m seeing seems to assume that Maxine Waters, in her all-but-inevitable role as chair of the House Financial Services Committee, would be the one requesting Trump’s returns.
Which is fine. But House committees other than the Committee on Ways and Means can’t merely request the returns—they have to have a resolution from the House specifically authorizing them to request the returns. That resolution, in turn, must state the purpose for asking for the return and that the information can’t reasonably be obtained from another source.
So far, that’s easy. There have been enough financial shenanigans in Trump’s history (including tax-specific shenanigans) that any legislative staff member worth his or her salt should be able to draft a legitimate purpose.
But there’s a problem going outside the Committee on Ways and Means. See, any other committee also faces the requirement that, to get the returns, it would have to be sitting in closed executive session. Unlike the Committee on Ways and Means, though, the Code puts a limit on other committees’ ability to provide tax returns that can be associated with individuals to the full House. Yes, the Committee can still do it, but only when the House itself is sitting in closed executive session.
We’re Probably Not Going To See Trump’s Returns
What does this all mean? It means that we’re unlikely to see Trump’s tax returns, unless he consents to have them released (or a Representative or staffer leaks them). Yes, the House almost certainly can get its hands on Trump’s tax returns, and should be able to use that information to, I don’t know, do something, the Tax History Project’s Presidential Tax Return page is likely to continue to have a hole from 2016-2020.
[fn1] After all, when asked about Democrats requesting his returns, Trump responded that he didn’t care. ““They can do whatever they want, and I can do whatever I want,” he said.
[fn2] Senate committees too, but since the Republicans stayed in control of the Senate, I’m ignoring the Senate for this post.
The Surly Subgroup 