Photo: Saul Loeb/AFP/Getty Images
This week, the House Ways and Means Committee formally moved to obtain President Trump’s federal tax forms. This move, which ought to be a mere formality, has slipped immediately into a political and legal conflict. What is so striking about the episode is how little outcry Trump’s open defiance of the law has created. It is by now simply taken for granted that this president holds himself above legal accountability and that his party will support him to the hilt.
The law governing this matter is unusually clear. The Internal Revenue Code states, “Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request.” This law has been used to examine tax returns of high-placed political officials. It was enacted in order to let Congress examine financial conflicts of interest by the administration, and forced the disclosure of a president’s tax returns (Richard Nixon).
News accounts describe this law as “obscure” or “little used,” which it is — but only because presidential candidates who receive a major-party nomination have habitually published their tax returns. It is a very strong norm that has made the law unnecessary. But the fact that the norm is backstopped by a law strengthens rather than weakens the case for enforcing it.
Trump recently told reporters, “From what I understand, the law’s 100 percent on my side.” The president declined to support this strident interpretation with any references to legal texts or other precedent, which is hardly surprising. Somewhat more unusually, his supporters have likewise failed to explain why the plain-text meaning of the law does not actually apply.
White House press secretary Sarah Sanders simply stated, “While his taxes continue to be under audit, he doesn’t anticipate that changing at any point anytime soon, and therefore doesn’t have any intention to release those returns.” Trump’s tax returns may or may not be under audit, but in any case, this has no bearing on a law allowing Congress to examine them.
Senator Charles Grassley, chairman of the Senate Finance Committee, defended Trump’s defiance of the law in terms that made up in emotional intensity what they lacked in any legal basis. “[Democrats] dislike him with a passion, and they want his tax returns to destroy him,” Grassley said. “That’s all that this whole process is about, and it’s Nixonian to the core.”
These are not good reasons, but they are reasons, and it’s worth considering their meaning. It is surely true that Democrats in congress dislike Trump. However, that has no bearing on their standing to exercise a right to which the law entitles them unambiguously.
More interestingly, Grassley asserts that obtaining Trump’s tax filings would “destroy him.” It’s startling that Grassley believes not only that the information in Trump’s tax returns is so devastating it would destroy him, but that the proper response is to prevent this ruinous information from being made available to Congress or the public.
National Review’s David French concedes that Congress has a legal right to the tax returns while devoting almost the entirety of his argument to the proposition that the law is terrible and Trump is correct to defy it. His stated concern is not Trump, but the poor average taxpayer who might be targeted by meanies in Congress: “They can have your return, my return, or any political enemy’s return.”
This theory fails to explain why, if the law is so ripe and tempting for abuse, none of the people running Congress over the last 95 years — many of them quite ruthless — actually have used it to attack private citizens. In any case, even if you’re worried that the law is ripe for abuse, leaving it on the books and failing to use it to compel the president to do what all modern presidents have done is hardly a solution. It could still be used in the future to target private citizens.
If this scenario that hasn’t happened in 95 years is really so scary, congress could amend the law so that it only applies to the president, or perhaps members of the cabinet as well, which would satisfy the concerns about privacy. But nobody actually thinks Trump would support such a reform, because he obviously doesn’t care about privacy in the abstract at all. In both its motive and its application, Trump’s position has nothing to do with protecting average citizens and everything to do with protecting Trump.
Mere public disclosure is just about the most minimal step possible to constrain Trump’s massive financial conflicts of interest. It’s certainly far milder than forcing him to place his assets in a blind trust, as all presidents have willingly done for decades. Yet even that modest step goes too far for any Republican to abide. This fanatical opposition only makes the forbidden more tantalizing.
Last year, the New York Times examined state records and found a decades-long pattern of massive tax fraud by Trump and his father, in addition to the devastating revelation that Trump inherited at least $400 million. Other reporters have found extensive evidence that Trump’s income comes from abetting money laundering or dealing with criminals and dictators.
This would help explain the unusual diligence the president has applied toward this problem. The Times reported recently that Trump urged Senate Majority Leader Mitch McConnell to speedily confirm his handpicked IRS chief counsel, Michael J. Desmond, even prioritizing his confirmation ahead of Attorney General William Barr. Trump generally takes little interest in the internal workings of government — his Defense Secretary resigned three and a half months ago, and Trump has taken no evident steps toward finding a replacement. He clearly cares a lot about having loyalists staffing the IRS.
Republicans are acting as though presidential tax returns have traditionally been kept private, and it is Democrats who wish to violate this sacred custom of secrecy. Obtaining Trump’s tax returns “sets a dangerous standard of having the federal government used as a political weapon” and is also “a waste of time,” asserts House Minority Leader Kevin McCarthy. (The actual standard it would “set” would be that presidents have to disclose their tax information, which is what the standard was before Trump came along.)
“Democrats say they’re interested in the tax returns of all presidents when they’re really just interested in one: President Trump,” Grassley argues. (Of course Democrats are only interested in obtaining this president’s taxes — he’s the only one who’s refused to disclose them!) Grassley adds, “It’s motivated by the Democrats’ intense dislike of this president. It’s motivated by their frustration over losing an election that they thought they’d easily win. It’s motivated by their desire to use all of the resources at their disposal to find something — anything — to bring this president down.”
Grassley is fixating on the motivation of Congress to obtain Trump’s taxes, while ignoring Trump’s own motivation to hide them, so that he can steer the conversation away from the obvious solution — from the standpoint of both the public good and the letter of the law. This is the method Republicans have used to justify every debasement of norms and the law Trump has undertaken: Drain the question of any neutral principle and reduce it to a simple struggle of us versus them. And the more gross and unjustifiable Trump’s behavior, the more Democrats resent him, which gives Republicans all the more reason to defend him.
Maintaining the secrecy of Trump’s tax returns “is a hill and people would be willing to die on it … we will see you in court,” boasts an administration official. Legally, they haven’t got a leg to stand on. It’s telling that nobody in the administration or the Republican Party seems to care.
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