Hello constitutional crisis: The administration won’t turn over Trump’s tax returns

Treasury Secretary Steven T. Mnuchin, perhaps the most dutiful of President Trump’s appointees, finally gave the House Ways and Means Committee the answer Monday that everyone knew was coming: No, the Internal Revenue Service will not be turning over Trump’s tax returns or audit records.

Now we can get on with the battle in court over whether the Treasury has the power to do that. And I have to confess, I’m torn over whether it should win.

Ways and Means Committee Chairman Richard Neal (D-Mass.) sent the IRS a formal request on April 3 for six years’ worth of tax returns from Trump and eight of his family’s businesses, along with audit information and related records the IRS has collected. The rationale — which my colleague Michael McGough argues was thin — was his committee’s interest in overseeing and possibly legislating on the IRS’ practice of routinely auditing the president’s tax returns.

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That’s a pretty transparent pretext. This is a fishing expedition inspired by suspicions that Trump is hiding something — possibly about foreign governments that he’s borrowed from or partnered with, or how little he’s given to charity, or whether he’s even paid taxes at all.

I share those suspicions. Trump’s excuse for not releasing his returns as a candidate or as president are ridiculous and an affront to the public, which shouldn’t trust anyone in higher office who won’t reveal his or her personal finances. It’s too great a leap of faith to believe that such a person will put the public’s interests ahead of personal ones.

But should Congress be able to demand the returns? Here’s where I’m conflicted.

Looking at Trump’s returns from 2016, 2017 and 2018 seems appropriate, given the stated purpose of examining how the IRS audits presidential returns. But Neal’s demand included returns for two years — 2013 and 2014 — when Trump wasn’t even a candidate. The idea that Congress can rummage around in a private citizen’s tax returns for signs of illegality is disturbing. As the Supreme Court has made clear, Congress is not a law enforcement agency.

Now, if there were solid evidence of financial ties that bound Trump to a foreign power, then it might be appropriate to look back through his old returns for proof. But “solid evidence” isn’t how I would describe any of the testimony Michael Cohen has offered.

On the other hand, Mnuchin argues that the law giving the chairmen of the House and Senate tax-writing committees the power to demand any person’s tax returns — which seems abundantly clear and unlimited, for understandable historical reasons — is actually not so clear or unlimited. According to Mnuchin, “the Supreme Court has held that the Constitution requires that Congressional information demands must reasonably serve a legitimate legislative purpose.”

Oversight is a legitimate legislative purpose, and that’s what Neal says is the point in demanding Trump’s returns and corresponding audit records. Yes, he would be on more solid ground if he limited the request to the returns Trump filed as president. But Mnuchin refused to turn over any of Trump’s returns.

So let the legal fight begin. The courts should make it abundantly clear that Congress can issue subpoenas and demand information for the purpose of overseeing federal agencies, not just for writing legislation, because such oversight is Congress’ job. But I, for one, wouldn’t mind if they set a high bar for the IRS turning over a private citizen’s tax returns to Congress.