Trump's Tax Returns Shielded by Predictable But Correctable Omission
Asking For Returns of Other Presidents Would Strengthen Legality of Demand
This is exactly what public interest law professor John Banzhaf had predicted earlier, in an analysis which also explained how this flaw in the legislative demand could be corrected easily.
Here's what he wrote.
The congressional demand for President Donald Trump's tax returns appears to have the same flaw as Trump's two initial travel bans, and that flaw could significantly delay or even doom what might otherwise be a strong legally valid request, says Banzhaf, who correctly predicted that a similar flaw in Trump's two initial travel bans would help lead to their invalidation before the flaw was corrected, and the third travel ban then upheld by the Supreme Court.
House Ways and Means Committee Chairman Richard Neal (D-Mass.) has demanded that the Internal Revenue Service turn over many income tax returns related to Trump, relying upon 26 USC 6103(f). That request seems to have a strong legal foundation since the statute requires that the "Secretary shall furnish such committee with any return or return information specified in the request."
However Mnuchin has now cited the same arguments made earlier by Trump's lawyers in denying the initial request, and suggesting that he may never voluntarily comply.
Trump's lawyers had argued that, despite the clear language of the statute, the request is legally invalid because there is neither a "legislative purpose" nor a "legitimate committee purpose" for seeking President Trump's returns.
They rely principally upon the Supreme Court's 1957 ruling in Watkins v. U.S. that "all legislative investigations must be related to, and in furtherance of, a legitimate task of the Congress."
Neal apparently sought to satisfy this requirement by stating in his demand letter that his committee "is considering legislative proposals and conducting oversight related to our Federal tax law, including, but not limited to, the extent to which the IRS audits and enforces the Federal tax laws against a President."
But, says Banzhaf, that justification may have a fatal flaw because only the tax returns related to one single president - and not to any other presidents - are being demanded.
This is similar to the flaw in Trump's initial travel bans, which were termed "Muslim bans" because only Muslim countries - and not non-Muslim countries - were included, thereby strengthening the argument that the purpose was not the legitimate claimed concern for protecting national security.
In the third and final travel ban which was eventually upheld by the Supreme Court, Trump's lawyers, among other changes, adopted the suggestion that Professor Banzhaf had made publicly when the initial bans were first promulgated - adding non-Muslim countries to undercut if not emasculate the argument that the ban was aimed solely at religious belief. That broader travel ban was then upheld.
Here Trump's attorneys are pointing to a very similar flaw in Neal's demand, saying that the explanation that Congress needs to assess how "the IRS audits and enforces the Federal tax laws against a President is obviously pretextual. . . Why is [Neal] not requesting information about the audits of previous Presidents?"
Promptly issuing requests for the tax returns of other presidents could remove at least one obvious flaw, and possibly avoid a strong argument Neal's lawyers are obviously going to face, says Banzhaf.
While Neal may have some clever legal arguments about why a purported study of "the extent to which the IRS audits and enforces the Federal tax laws against a President" should logically include the returns of only one president, it would be better and easier to eliminate the problem entirely rather than hoping to argue around it.
This is a lesson Trump's attorneys learned the hard way after suffering defeat after defeat in the courts by including in the initial two travel bans only Muslim countries and no others.
To help eliminate this defect, several non-Muslim countries were added to the final version - the one upheld, but only after long delays, by the Supreme Court.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
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