For all the attention given to the felonies committed by Michael Cohen and Paul Manafort, the Mueller investigation still hasn’t shined a light on the central mystery surrounding Donald Trump’s presidency thus far: Just what, if anything, he owes to Russia. If he has no Russian connection, why is the president so deferential to Russian President Vladimir Putin and so intent on silencing Russian accusers like former CIA Director John Brennan? There could be innocent explanations, of course, but many Americans, including some Republicans, are puzzled.
The answer may lie inside documents we’ve been talking about for two years: his tax returns. If Trump does have a clear connection to Russians—if he owes them money, or if he has business partnerships with Putin allies—the returns may provide useful clues and would certainly be a worthwhile place to look.
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There’s no law requiring a president to publicize his taxes, as we learned when Trump defied 40 years of precedent and refused to release them during the campaign. Senate Minority Leader Chuck Schumer has urged new legislation to obtain the president’s tax returns to begin finding answers, but that idea doesn’t seem very promising; even if Schumer got the Republican majority to sign on, or the Democrats took control of both houses of Congress in November, it would still require a virtually impossible supermajority in both Houses to overcome a likely presidential veto.
But according to the rules already on the books, the Senate doesn’t need a new law to see Trump’s returns. Rather, action by a single Senate Republican may be all that is needed to initiate an immediate investigation of Trump’s tax returns and begin the process of discovery.
According to a law passed in 1924, in part to address concerns about conflicts of interest involving executive branch officials such as treasury secretary Andrew Mellon, the House Ways and Means Committee, the Senate Finance Committee, and the Joint Committee on Taxation have the right to obtain from the IRS any person’s tax returns—including the president’s—without his consent and to conduct an investigation. If there is a legitimate purpose, the committees may then release the tax information to the Congress for potential disclosure to the public.
Right now, the Republicans hold a mere one-vote majority in the Finance Committee, which means consent by a single Republican on that committee could be enough to authorize committee action. Once authorized, the committee could act immediately and unilaterally without the agreement of the rest of Congress, the passage of a new law, or the filing of any lawsuit. Republican Finance Committee Chairman Orrin Hatch, a well-respected senior legislator who recently criticized the president’s Brennan decision, is just one possible member who might decide enough is enough. With the Utah senator’s leadership, other committee Republicans troubled by the president’s performance in Helsinki, including Senators Charles Grassley of Iowa, Rob Portman of Ohio, Patrick Toomey of Pennsylvania and Tim Scott of South Carolina — serious legislators all — might well follow.
What would happen next? As it happens, the structure for an immediate tax investigation is already in place. The nonpartisan staff of the Joint Committee of Taxation has both the expertise and integrity to conduct a confidential investigation requested by the Finance Committee. The staff serve as tax experts to all members of Congress—legislators from both parties and in both Houses—and maintain a confidential relationship with each to protect their competing interests. The same staff carried out an equally sensitive task in the past, the investigation of the tax returns of former President Nixon, in an even-handed, comprehensive manner without a single leak. There is no reason the staff could not perform equally well today.
What about special counsel Robert Mueller? He, too, is presumably trying to unravel this mystery, possibly with the help of the president’s tax returns, as well as any new information that may be forthcoming from Cohen and Manafort. But compared to the tax committees, Mueller’s right to access and reveal any tax information is quite restricted.
If he persuades a court that the president may have committed a non-tax crime, he could obtain from the IRS only such tax information that may be relevant to the allegations and cannot be obtained from another source. If he can show a possible civil or criminal violation of the tax laws by the president, his access to information would be somewhat broader. In either case, however, he could disclose the tax information only in limited circumstances, such as if it is directly related to the resolution of an issue in a judicial proceeding involving the president.
Further, Mueller’s ultimate ability to disclose anything, including any confidential tax information, is limited by the terms of his appointment. If the returns do contain important information that the public deserves to know, Mueller’s investigation really isn’t designed to do that. The most direct way to achieve that end is through a tax committee investigation and release.
This isn’t just an abstract idea: It’s urgent. The tax committees should act now rather than wait until after the midterm elections and a possible Democratic takeover of either or both Houses. Any investigation after a Democratic victory would undoubtedly encounter strenuous objection from the president and his supporters, who would question the legitimacy of the action, the fairness of the investigators, and the veracity of any conclusions reached. It might simply add more fuel to the raging partisan fires. In contrast, the initiation of a bipartisan investigation now—when the Republicans still maintain control over the committees—potentially could begin the process of healing that our nation so desperately needs.
When Congress authorized the tax committees almost 100 years ago to obtain and investigate tax returns, it sought to balance the public’s right to know with the privacy rights of taxpayers. Given its extraordinary character, the authority has been rarely exercised. But the present circumstances may be the most compelling for committee action since the authority was created. It is time, now, for one Republican to step up in the nation’s interest.
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