Law­maker sets new dead­line for Trump tax in­for­ma­tion

The Charlotte Observer (Sunday) - - Stay Connected - BY NICHOLAS FANDOS New York Times

A Demo­cratic House chair­man on Satur­day cas­ti­gated the Trea­sury Depart­ment for fail­ing to meet his dead­line to fur­nish Pres­i­dent Don­ald Trump’s tax re­turns, ar­gu­ing that the ad­min­is­tra­tion’s ap­par­ent con­cerns over his use of pow­ers out­lined in the IRS tax code “lack merit.”

The chair­man, Rep. Richard Neal, D-Mass., set a new dead­line for com­pli­ance, April 23, and warned that if the Trump ad­min­is­tra­tion did not re­ply by then, its “fail­ure will be in­ter­preted as a de­nial of my re­quest.”

The tone of Neal’s let­ter sug­gested Democrats are pre­pared to take their re­quest – made through a lit­tle-known pro­vi­sion in the fed­eral tax code – to court if nec­es­sary, ini­ti­at­ing what could be a pro­tracted le­gal fight over Congress’ over­sight pow­ers. In it, he cited le­gal prece­dent that he ar­gued clearly showed the law is on the com­mit­tee’s side, and said that the ex­ec­u­tive branch had no right to “sec­ond guess” its mo­ti­va­tions.

“I am aware that con­cerns have been raised re­gard­ing my re­quest and the author­ity of the com­mit­tee,” Neal wrote. “Those con­cerns lack merit. More­over, ju­di­cial prece­dent com­mands that none of the con­cerns raised can le­git­i­mately be used to deny the com­mit­tee’s re­quest.”

An­tic­i­pat­ing an in­creas­ingly likely le­gal fight over the Ways and Means ac­tion, House Democrats were also tak­ing steps to open a side door into Trump’s fi­nances. Rep. Eli­jah E. Cum­mings, DMd., the chair­man of the House Over­sight and Re­form Com­mit­tee, in­formed Repub­li­cans on Fri­day that he in­tended to is­sue a subpoena in the com­ing days to com­pel Mazars USA, an ac­count­ing com­pany tied to the pres­i­dent, to turn over rel­e­vant fi­nan­cial records in its pos­ses­sion.

Repub­li­cans balked at the re­quest, call­ing it an “as­ton­ish­ing abuse” of the com­mit­tee’s pow­ers. But Cum­mings said he had the author­ity to in­ves­ti­gate po­ten­tial wrong­do­ing by Trump and tes­ti­mony from Michael Co­hen, his long­time fixer, that the pres­i­dent had in­ten­tion­ally mis­rep­re­sented his as­sets and li­a­bil­i­ties to suit his needs at a given mo­ment.

“The com­mit­tee has full author­ity to in­ves­ti­gate whether the pres­i­dent may have en­gaged in il­le­gal con­duct be­fore and dur­ing his ten­ure in of­fice, to de­ter­mine whether he has undis­closed con­flicts of in­ter­est that may im­pair his abil­ity to make im­par­tial pol­icy de­ci­sions, to as­sess whether he is com­ply­ing with the emol­u­ments clauses of the Con­sti­tu­tion, and to re­view whether he has ac­cu­rately re­ported his fi­nances to the Of­fice of Govern­ment Ethics and other fed­eral en­ti­ties,” Cum­mings wrote, hint­ing at the broad scope of his own in­ves­ti­ga­tion.

Trump him­self has made abun­dantly clear he does not in­tend to re­lent on his years­long ob­jec­tions to turn­ing over his tax re­turns, and his per­sonal lawyer has urged the Trea­sury Depart­ment, which in­cludes the IRS, to fight Neal’s re­quest.

On Wed­nes­day, just be­fore Neal’s ini­tial dead­line for com­pli­ance, the Trea­sury Depart­ment said it needed more time to as­sess the le­gal­ity of the re­quest but cast doubt on his as­ser­tions to hav­ing a

‘‘ JU­DI­CIAL PRECE­DENT COM­MANDS THAT NONE OF THE CON­CERNS RAISED CAN LE­GIT­I­MATELY BE USED TO DENY THE COM­MIT­TEE’S RE­QUEST.” Rep. Richard Neal, D-Mass.

le­git­i­mate leg­isla­tive pur­pose to do so. Steven Mnuchin, the Trea­sury sec­re­tary, wrote that he was con­sult­ing the Jus­tice Depart­ment to draft a re­sponse, but did not in­di­cate how long that would take.

“The com­mit­tee’s re­quest raises se­ri­ous is­sues con­cern­ing the con­sti­tu­tional in­ves­tiga­tive author­ity, the le­git­i­macy of the as­serted leg­isla­tive pur­pose and the con­sti­tu­tional rights of Amer­i­can cit­i­zens,” Mnuchin wrote. “The le­gal im­pli­ca­tions of this re­quest could af­fect pro­tec­tions for all Amer­i­cans against po­lit­i­cally mo­ti­vated dis­clo­sures of tax in­for­ma­tion, re­gard­less of which party is in power.”

This month, Neal for­mally re­quested six years of Trump’s per­sonal and busi­ness tax re­turns, ending months of speculation about when newly em­pow­ered Democrats would make a re­quest and how they would jus­tify it.

Trump has de­fied mod­ern po­lit­i­cal norms and re­fused to re­lease any of his tax re­turns, ei­ther as a can­di­date or as pres­i­dent. He has re­peat­edly claimed, in­clud­ing as re­cently as Wed­nes­day, that he is un­der au­dit by the IRS and there­fore can­not make the doc­u­ments pub­lic as ev­ery other pres­i­den­tial nom­i­nee has done for decades.

But no law pre­vents a tax­payer from re­leas­ing re­turns while un­der au­dit, and the IRS au­to­mat­i­cally au­dits the re­turns of all pres­i­dents and vice pres­i­dents while they are in of­fice.

Neal says it is a com­mit­tee in­ves­ti­ga­tion of that manda­tory pres­i­den­tial au­dit pol­icy that ne­ces­si­tates see­ing Trump’s re­turns.

Neal is re­ly­ing on a lit­tle-known pro­vi­sion in the fed­eral tax code, Sec­tion 6103, that dates to the Teapot Dome scan­dal of the 1920s and gives the chair­men of Congress’ tax writ­ing com­mit­tees unique pow­ers to re­quest tax in­for­ma­tion on any filer. The code it­self gives the ex­ec­u­tive branch lit­tle wig­gle room in re­spond­ing, stat­ing only that the Trea­sury sec­re­tary “shall” fur­nish the in­for­ma­tion upon re­quest.

Le­gal schol­ars who have stud­ied the pro­vi­sion and Neal’s re­quest be­lieve that if the Trea­sury Depart­ment does ob­ject, it will ar­gue that the Ways and Means chair­man has over­stepped Congress’ over­sight author­ity by mak­ing a re­quest that lacks a le­git­i­mate leg­isla­tive pur­pose and is meant only to achieve a po­lit­i­cal end. A re­sult­ing le­gal fight could ul­ti­mately make it to the Supreme Court and have significant im­pli­ca­tions on the ex­pan­sive­ness of Congress’ in­ves­tiga­tive pow­ers.

Repub­li­cans on Capi­tol Hill, Trump’s White House aides and his per­sonal lawyer, Wil­liam S. Consovoy, have all ar­gued that Democrats are merely out to po­lit­i­cally em­bar­rass the pres­i­dent and urged the IRS and Trea­sury Depart­ment to re­ject their re­quest as il­le­git­i­mate.

Neal’s let­ter on Satur­day punched back at some of their ob­jec­tions. No­tably, it was ad­dressed not to Mnuchin but to Charles Ret­tig, the IRS com­mis­sioner, whom Democrats be­lieve should make the de­ci­sion him­self.

Neal ar­gued that the statute in ques­tion was clear that Ret­tig must hand over the in­for­ma­tion. But he added that the ad­min­is­tra­tion had no author­ity to ques­tion how the com­mit­tee would han­dle the in­for­ma­tion or the va­lid­ity of its leg­isla­tive pur­pose.

“There is no valid ba­sis to ques­tion the le­git­i­macy of the com­mit­tee’s leg­isla­tive pur­pose here,” Neal wrote, cit­ing a 1957 Supreme Court case, Watkins v. United States, as say­ing Congress’ in­ves­tiga­tive pow­ers were “broad” and “en­com­passes in­quiries con­cern­ing the ad­min­is­tra­tion of ex­ist­ing laws as well as pro­posed or pos­si­bly needed statutes.”

But le­gal schol­ars say the ad­min­is­tra­tion could seek to cite the same 1957 rul­ing against the com­mit­tee, be­cause it also holds that while the pow­ers of Congress to in­ves­ti­gate is “broad,” they are also “not un­lim­ited.”

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