The law makes clear that the Treasury secretary “shall furnish” the House Ways and Means Committee any tax returns it wants to examine including those of the president. The acting chief of staff to President TrumpDonald John Trump2020 Dem hits back at Trump for giving ‘firefighting advice’ to Paris: ‘Do your own damn job’ French officials reject Trump suggestion to use ‘flying water tankers’ on Notre Dame fire Overnight Energy: Interior watchdog opens investigation into new secretary | Warren unveils 2020 plan to stop drilling on public lands | Justices reject case challenging state nuclear subsidies | Court orders EPA to re-evaluate Obama pollution rule MORE proclaimed that the committee will “never” see his tax returns. If the matter ends up in court, the committee will likely get access, but the public will not automatically learn what is in them. This explains why.
The president will not allow his underlings at the Treasury Department to turn over his returns without a fight. But given the clarity of the statute and the history of the House Ways and Means Committee using it to access tax returns since 1924, only a constitutional objection can be the basis of a refusal to comply with the demand. The separation of powers precludes Congress from gaining access to the personal tax information of the president. The constitutional right of privacy precludes Congress from making public the tax information of any citizen. Neither of these objections is enough to keep the returns from the committee, but they may provide the president some protection from the public seeing them.
The president is portraying the House Democrats as voyeurs whose only reason for asking for his returns is to score political points. However, there are several legitimate reasons why the House Ways and Means Committee wants to examine these returns. First, the IRS currently audits the tax returns of the president and vice president each year, but since the IRS works for the president, the committee wants to assure itself that his audit was done properly. Second, Trump has made it clear that he pays as little tax as possible, so the committee will want to see whether he has found some new loopholes that Congress should close. Finally, Trump has executive power to lower his own taxes by pushing legislation, including the massive tax reform package that was enacted more than a year ago.
The legal basis for a separation of powers claim by the president would be that the demands of the committee interfere with his ability to carry out his constitutional functions. His problem is that he can point to no power given to him by the Constitution that will be impaired if the committee obtains his returns. The transfer will be done by others, and members are not demanding that the president must personally explain his returns.
More importantly, the returns reflect his personal rather than official life with only the latter protected by separation of powers. Indeed, every other recent president has made his tax returns public, without any suggestion that doing so interfered with carrying out constitutional functions. Therefore, given the very strong interests of the committee in examining the returns of the president, and the lack of justification for withholding them, the president will almost surely lose that battle.
However, the president has a stronger argument on what should not happen to them once they go to the committee. Trump has a justified fear that the House Democrats who run the committee will make his returns public once they have figured out how to use the information to their political advantage. If all his tax information becomes public that way, it would set a dangerous precedent for all of us, or at least anyone whom the Ways and Means Committee seeks to target for whatever reason.
The Tax Code is clear that individual tax information may not be made public. This protection should not be lost if that information is provided to Congress for legitimate purposes. The law enabling the committee to obtain the returns of any individual requires that they be provided only in “closed executive session,” although there are no specific rules on what the committee can do with them after that. Assuming the case goes to court, the president would be wise to focus his attention on keeping his returns within the committee by making them subject to a court order forbidding further disclosure rather than fighting committee access.
Of course, the tax information of the president is different from yours and mine, and the committee may have valid reasons for making its findings public. The committee ne an escape valve, such as returning to court to ask permission, for good cause, to make appropriate public disclosures of specific return information. Congress cannot perform its oversight and legislative functions unless it has access to the information it thinks it ne. The separation of powers does not permit the president to decide what Congress ne, just as Congress is not allowed to decide what the president ne. But everyone, including Trump, is entitled to meaningful protection against the unwarranted disclosure of their tax information.
Alan Morrison teaches constitutional law as a professor and is the Lerner Family Associate Dean of Public Interest at George Washington University.