Five p.m. today, the deadline set by House Ways and Means Committee, Massachusetts Democrat Richard Neal for the production of six years of the income tax returns filed by President Trump and all the business entities he runs, came and went. Instead of several hundred pages of confidential filings that could be leaked, Neal was left with a letter from Treasury Secretary Steve Mnuchin saying that he was giving himself until May 6 to make a decision. This follows a previous decision by Mnuchin to observe yet another House Democrat demand (see BREAKING. Treasury Refuses To Give President Trump’s Tax Returns To House Democrats). However, it is pretty clear what his decision is going to be:
But it was clear from a lengthy letter Mnuchin sent Neal shortly after the deadline that the administration was unlikely to accede to the request, which is expected to lead to a legal battle that will test the limits of congressional oversight. An appendix to the letter laying out a chronology of the Democrats’ efforts included a section titled “The Committee’s Construction of a Pretextual Purpose” for seeking the returns, indicating the administration would challenge the request on grounds that Neal has no legitimate legislative or policy purpose for seeking them.
“History demonstrates that private tax return information is susceptible to abuse for partisan purposes — regardless of which party is in power,” Mnuchin wrote. “Unless carefully restrained by law, this risk threatens the privacy of all taxpayers.”
This has produced some hysterics. For instance:
Trump administration has missed a 5 p.m. Tuesday deadline to produce Trump’s tax returns.
Failure to comply with a subpoena could lead to contempt of Congress, daily fines or even jail for Steven Mnuchin https://t.co/RAaaucq2qx
— Roll Call (@rollcall) April 23, 2019
This is totally bullsh**. Who says so? The Congressional Research Service notes that never, in history, has an administration official acting with the support of the administration been sanctioned in any way for ignoring a Congressional subpoena. Fines and jail are, strangely enough, not something that Congress can impose. Those have to be the result of charges filed by a US Attorney. One time Congress tried to sue in civil court to compel compliance, the case lasted 19 months before both sides called it quits without the documents being produced.
In light of these practical realties, in many situations Congress likely will not be able to rely on the executive branch to effectively enforce subpoenas directed at executive branch officials, nor will reliance on the civil enforcement of subpoenas through the judicial branch always result in a prompt resolution of the dispute. Although subject to practical limitations, Congress retains the ability to exercise its own constitutionally based authority to enforce a subpoena through inherent contempt.
But the Vichy Republicans are having a minor attack of fecal incontinence over Trump’s refusal. The wretched David French, who, as far as I can tell hasn’t tried any more cases against a president in his life than have I, offers:
Moreover, the demand for Trump’s records clearly pertains to an area where “legislation could be had.” The private business activities of American presidents are subject to congressional regulation (within constitutional limits), and knowledge about those activities is relevant to congressional decision-making. Impeachment, too, is clearly and unequivocally a legislative function. Indeed, it’s exclusively a legislative function.
And while Trump is right to be skeptical of the Democrats’ motives for demanding his records (there is more than the whiff of a fishing expedition to the request), the Supreme Court has made it clear that “in determining the legitimacy of a congressional act [under the speech-or-debate clause] we do not look to the motives alleged to have prompted it.” The clause protects against even an “inquiry” into the “motivation” for the relevant congressional act.
It’s hard, then, to view Trump’s lawsuit as anything other than a delaying tactic, an excuse for defying an applicable federal statute while the case winds through the courts. But delaying tactics should not so explicitly challenge our proper constitutional order. Congress has the power — by statute and through the Constitution — to demand Trump’s tax returns. Courts should promptly reject Trump’s suit, and Trump should produce his returns. Trump may disagree with the law that grants Congress such broad authority, but it is the law, and presidents must comply with the law.
As to be expected, this reeks of Bulwarkian nonsense. He pulls the same dishonest stunt that all the people on the left are pulling (surprise) of conflating all Congressional subpoenas with subpoenas issued as part of an impeachment hearing. That isn’t how it works. The cases of Eric Holder and Lois Lerner demonstrate rather conclusively that in the case of a political fight between Congress and the President that Congress can paper Washington, DC with subpoenas but it relies upon the executive to enforce them.
President Trump is under no moral or ethical and, it will be proven, legal obligation to assist House Democrats damaging him politically. if they want to impeach him and issue a subpoena for his tax records, they can, and they will prevail. If they want to engage in a fishing expedition, this is going nowhere.
The bottom line is that if the Trump administration can delay the Supreme Court finally ruling on the case until November 2020, the issue is mooted. Trump will either be president and will be leaving office at age 78 and won’t care about whatever the returns show about his finances in the unlikely event that the Supreme Court allows requires this subpoena to be honored, or he’ll be a private citizen and Congress will have no real purpose in trying to push the case and perhaps lose. If the GOP takes the House back in 2020, which is a distinct possibility, then the case will be withdrawn.