After an unnecessarily prolonged court battle, the House Ways and Means Committee is now in possession of six years of Donald Trump’s tax returns. Trump’s tax returns now in the hands of House Democrats after lengthy court battle:

The Treasury Department said Wednesday that it had complied with last week’s Supreme Court decision that paved the way for the returns to be handed over to the House Ways and Means Committee.

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The committee didn’t immediately respond to a request for comment. CNN first reported that the committee had received the tax returns.

Even though the Treasury Department said it has complied with the court’s decision, it’s unclear whether anyone on the committee has seen the tax returns at this point or what the process will be for accessing them.

Ways and Means Committee members were meeting on Thursday, and lawmakers expected to learn more about Trump’s taxes then, a Democrat on the panel said.

“I’m not sure yet if we will see his taxes then or if we are just going to be walked through them,” the lawmaker said.

It’s unclear what House Democrats plan to do with the documents, especially as they face a GOP takeover of the House in January. Republicans have made it clear they’re not interested in or concerned about Trump’s tax records.

Daniel Hemel, a Professor of Law at the New York University School of Law whose research explores topics in taxation, has an elegant solution in a lengthy piece at Lawfareblog. House Democrats Can Release Trump’s Tax Returns. But Should They?

Shorter version: Sen. Ron Wyden, chairman of the Senate Finance Committee, has the same power as the House Ways and Means Committee Chairman to request Trump’s tax records. The Senate Finance Committee should request Trump’s tax records, and the House Ways and Means Committee should hand off its investigation of the IRS presidential tax audit program to the Senate Finance Committee, to continue the investigation into the next Congress (since House Republicans will engage in a cover up and obstruction to protect Trump).

Excerpt from Hemel’s piece:

Now that a House committee has obtained access to six years of former President Trump’s tax returns, congressional Democrats face an easy question and a harder one.

The easy question is whether, as a matter of law, the House Ways and Means Committee—which gained access to the former president’s tax filings after the Supreme Court dismissed Trump’s last-ditch bid to block the Internal Revenue Service from handing over the documents—can make Trump’s returns public before Republicans take control of the chamber on Jan. 3. The answer to that question is straightforwardly yes.

The harder question is whether, as a normative matter, the committee ought to make Trump’s returns public in the waning weeks of the Democratic majority.

[A]ny review of the presidential audit program that starts now and ends when the GOP takes control of the House in January would be slapdash and superficial. If Democrats on the House Ways and Means Committee rushed to release Trump’s returns in the lame-duck session—without conducting the comprehensive review of the presidential audit program that they promised—it would look like their stated motive for seeking the documents was indeed, as Trump has alleged, pretextual.

Fortunately, the Senate Finance Committee—which will remain under Democratic leadership in the next Congress—has both the resources and the apparent inclination to conduct the comprehensive review of the presidential audit program that House Democrats initially set out to undertake. So even if the House Ways and Means Committee doesn’t release Trump’s tax returns this month, the likely consequence is not that Trump’s returns will remain under wraps forever. The Senate Finance Committee will be able to obtain the returns itself, and that committee then can release return information that is relevant to its review of the presidential audit program.

[S]till, it’s important that Democrats on the House Ways and Means Committee remain true to their word. Chairman Neal said his committee needed Trump’s tax returns to evaluate the extent to which the IRS audits and enforces federal tax laws against the president. To turn around now and release Trump’s returns—outside the context of a thorough evaluation of the IRS’s presidential audit program—would make the stated rationale look much like a head fake. That would seem especially gratuitous given that the Senate Finance Committee stands ready, willing, and able to carry out its own review of the presidential audit program.

The Easy Question: Can House Democrats Make Trump’s Tax Returns Public?

The law is clear that the House Ways and Means Committee can now make Trump’s tax returns public if a majority of the committee members vote to do so.

The relevant statute, Section 6103(f) of the Internal Revenue Code, instructs the IRS to release otherwise-confidential tax returns or return information to three congressional tax committees—the Senate Finance Committee, the House Ways and Means Committee, and the Joint Committee on Taxation—upon written request from the chair of any of those panels. The statute also instructs the IRS to release returns or return information to other congressional committees under a narrower set of circumstances.

The key language regarding the receiving committee’s confidentiality obligations lies in Section 6103(f)(4). That paragraph says that any return or return information obtained by the Senate Finance Committee, House Ways and Means Committee, or Joint Committee on Taxation “may be submitted by the committee to the Senate or the House of Representatives, or to both.” It goes on to say that any return or return information obtained by another committee “may be submitted by the committee to the Senate or the House of Representatives, or to both, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer, shall be furnished to the Senate or the House of Representatives only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure” (emphasis added).

Some textualist judges and justices are fond of the Latin phrase “expressio unius est exclusio alterius”: the expression of one thing is the exclusion of the other. But one doesn’t need to be a textualist—or a classicist—to recognize the importance of the contrast between the two submission provisions. Absent the taxpayer’s consent, other committees can submit returns to the full Senate or House “only when sitting in closed executive session.” The Senate Finance Committee, House Ways and Means Committee, and Joint Committee on Taxation can submit returns to the full Senate or House without condition.

Judge Trevor McFadden of the U.S. District Court for the District of Columbia reached the same conclusion in his December 2021 decision rejecting Trump’s bid to block the IRS from releasing his returns. “It might not be right or wise to publish the returns,” McFadden wrote, but the House Ways and Means Committee has the “right to do so.” And if the House Ways and Means Committee exercises that right with respect to Trump’s returns, its action wouldn’t be unprecedented: In 2014, the House Ways and Means Committee published return information regarding 51 taxpayers as part of its investigation into allegations that the IRS had discriminated against conservative nonprofit organizations seeking tax exempt status.

In the definitive scholarly treatment of Section 6103(f), longtime University of Virginia law professor George Yin, who served as chief of staff of the Joint Committee on Taxation from 2003 to 2005, concludes that the choice to allow the three tax committees to publish private tax information was a “conscious decision” by Congress. Prior to 1976, Yin explains, the president—along with the three congressional tax committees—had statutory authority to make return information public. A 1976 amendment eliminated the president’s authority to publicize return information but preserved the power of the three tax committees. “Congress no doubt felt compelled in 1976 to preserve some outlet for Congressional disclosures to the public,” Yin writes, and it “was natural to give this authority to the tax committees.”

On top of all this, the Speech and Debate Clause immunizes lawmakers from liability for statements they make in committee and on the House or Senate floor. So even if it weren’t for Section 6103(f)(4), a Ways and Means Committee member could—without legal consequence—read Trump’s tax returns aloud, line by line, with the C-SPAN cameras rolling. But House Democrats don’t need to rely on constitutional super-immunity here: The relevant statutory provisions clearly empower the Ways and Means Committee to enter Trump’s tax returns into the public domain. [As well as  the Senate Finance Committee and the Joint Committee on Taxation.]

~Jump~

Can the Senate Take Over?

Enter stage left: the Senate Finance Committee. While the Republicans who take control of the House Ways and Means Committee in January are exceedingly unlikely to continue the Democrats’ inquiry, the Senate Finance Committee under the leadership of Chairman Ron Wyden (D-Ore.) is quite capable of conducting the comprehensive review of the presidential audit program that House Democrats won’t be able to complete. Wyden will have to send his own written request to the IRS for Trump’s returns, but this shouldn’t be much more than a formality: Wyden could send the request this morning, and the IRS could send the documents back this afternoon. There is no requirement that Wyden or the IRS even inform Trump of the request before the IRS fulfills it. By the time Trump could file a lawsuit to stop the IRS from complying, Wyden already would have the documents in hand. In any event, a lawsuit by Trump to stop the IRS from fulfilling Wyden’s request would be frivolous given the D.C. Circuit’s decision resolving the issue in the House litigation—and almost certainly would be dismissed much more quickly than Trump’s earlier bid to block the House.

Section 6103(f)(4) also allows Neal, as chair of the House Ways and Means Committee, to appoint agents to examine the returns that he has obtained through his request. In theory, Neal could appoint Senate Finance Committee staffers—or Chairman Wyden himself—as the House committee’s agents. But Neal’s GOP successor as House Ways and Means chair could revoke that appointment, ending the Senate’s inquiry in midstream. Thus, the better course of action is clearly for Wyden to issue his own written request for the returns on the Senate Finance Committee’s behalf.

In sum, even as the window closes for the House Ways and Means Committee to conduct a comprehensive review of the presidential audit program, Congress still can comb through Trump’s tax returns and determine whether the IRS fairly and fully audited the former president. It would be in a different chamber of Congress—the Senate, not the House—but Trump would nonetheless be subject to legislative branch scrutiny.

Hopefully, House Democrats will recognize that deferring to their Senate colleagues is preferable to reneging on their own word and publishing Trump’s returns outside the context of the presidential audit program review that they promised. If, instead, House Democrats release the returns now, Trump and his supporters will charge Democrats with duplicity for saying one thing in litigation and doing another thing afterward—and the charge won’t be entirely baseless. That would, perversely, allow Trump to transform the matter of his tax returns from a political vulnerability for him to a potential liability for Democrats. And beyond questions of political strategy, promise-keeping is—of course—an important value in itself.

So yes, presidents should release their tax returns, but that doesn’t release House Democrats from the avowals about their motives that they have made since 2019. In their last weeks in the majority, House Democrats have another opportunity to demonstrate why they deserve the nation’s trust. They should seize it—even if that means those of us who have been waiting for years to know what’s buried in Trump’s tax returns might have to wait a little longer.




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