Trump has hired some high priced albeit apparently clueless attorneys to prevent the House Ways & Means Committee from obtaining his tax filings from the IRS. It is not clear to me Trump has standing to insert himself into an intra-governmental request that is specifically authorized by the tax code.
Section 6103(f)(1) of the Internal Revenue Code (IRC) reads:
"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 [of the Treasury] SHALL furnish such committee with any return or return information specified in such request....."
Notice there are no conditions placed on the request. Ways & Means asks..... Secretary of the Treasury must provide the filing. Nothing about review by General Counsel or the Attorney General. Should Mnuchin refuse to produce the filings, Ways & Means will sue, and the court(s) will look to three things: (1) the language of the statute (above), (2) the case law, and (3) the legislative intent at the time the statute was passed into law.
1. The language is clear: note the SHALL language: "the Secretary [of the Treasury] shall furnish such committee with any return or return information specified in such request." Such language in a statute compels action.
2. Case law/precedent acts. During the Nixon Administration, Nixon's tax filings were audited by IRS. The IRS gave him a clean bill of health. The controversy continued, and faced with a threat of compelled discovery, Nixon consented to his tax filings being reviewed by the Joint Committee on Taxation, which found Nixon owing an additional $475,431.00. [Note: it is not clear Nixon ever paid his back taxes, because when he left office in disgrace and under legal storm clouds, his hand-picked tool Gerald Ford gave him a blanket pardon].
A better precedent came during Republicans’ Obama-era investigations into whether the IRS discriminated against conservative groups seeking tax-exempt status. As part of those inquiries, Republicans used the law to make public protected tax information about those organizations.
3. Legislative intent. Courts often look to transcripts of contemporaneous public debate and notes taken by legislators and legislative staff to determine more precisely the legislative intent of certain laws.
In this case, the legislative intent could not be more clear. As noted by the Center for American Progress:
" in 1922, President Warren Harding’s secretary of the interior accepted bribes from businessmen in exchange for favorable no-bid leases on public oil reserves, including the Teapot Dome oil field in Wyoming. Word of the shady transactions got out in the press, and Congress began a multiyear investigation. As part of that investigation, Congress sought some of the tax returns of those involved in the scandal." At the time, however, Congress had no authority to compel release of tax returns.
Coolidge eventually ordered them released, but Congress did not wish to have to beg the president in order to fulfill their oversight functions.
The issue came to a head when fabulously wealthy Andrew Mellon was Secretary of the Treasury.
"Members of Congress were frustrated "by their inability to obtain tax information from Treasury Secretary Andrew Mellon to determine whether his sprawling business interests influenced his recommendations to Congress on tax policy. Mellon was one of the country’s wealthiest men, and the tax policy changes he recommended to Congress would surely have affected his finances; thus, members sought information on those interests to determine how much weight to place on his recommendations.15 The Senate also launched an investigation into the Bureau of Internal Revenue, now known as the IRS, including whether it was showing favoritism toward businesses owned by Mellon. Senators found their investigation hampered by their reliance on the executive branch to obtain tax returns and by President Coolidge’s hostility to the investigation.
Against this background, Congress, via the Revenue Act of 1924, gave itself the power to compel the secretary of the treasury to furnish tax returns upon request. In approving the provision, legislators cited Congress’ need to review tax return information “to evaluate Administration tax proposals, develop its own tax legislative initiatives, and carry out investigations.”
The legislative intent could not be clearer. Congress passed the law for the specific reason to inquire into the tax filings of a high government official with "sprawling business interests."
With respect to the mandatory shall language in the Act, the Supreme Court has upheld shall provisions on numerous occasions. Here’s a good one:
"The Panel's instruction comes in terms of the mandatory "shall,'' which normally creates an obligation impervious to judicial discretion. Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428, 430, 91 L.Ed. 436 (1947). Lexecon v. Milberg Weiss Bershad Hynes & Lerach, 118 S.Ct. 956, 523 U.S. 26, 140 L.Ed.2d 62 (1998)"
Take away point: "the mandatory "shall" which creates an obligation IMPERVIOUS TO JUDICIAL DISCRETION." [emphasis added]. In other words, even the Supremes cannot ignore the mandatory language of the statute.
Donald J. Trump...... come on down and play The Jig Is Up.