Dems plot next move in Trump tax-return battle

The Trump administration this week is expected to miss a second deadline for providing President Trump’s tax returns, making it all but certain that a legal fight will ensue.

House Ways and Means Committee Chairman Richard Neal (D-Mass.) gave the IRS until Tuesday at 5 p.m. to turn over six years of Trump’s tax filings and said he’d consider a failure to comply to be a denial of the request. Neal initially set a deadline of April 10 in an April 3 letter to the IRS, but the administration missed that deadline.

Some Democrats say their next move will likely involve issuing a subpoena for the documents. Administration officials have said the president will not turn over his returns, meaning a subpoena standoff would shift the battleground into the courts.

{mosads}“If the IRS does not comply with the request, Chairman Neal would likely issue a subpoena for the returns and return information as detailed in the initial letter,” Rep. Judy Chu (D-Calif.), a Ways and Means Committee member, said last week on a call hosted by Tax March.

“If the administration does not comply with the subpoena, I believe a legal battle would begin to defend Congress’s investigative authority,” she added.

Under the Ways and Means Committee’s rules, the power to authorize and issue subpoenas is delegated to the chairman, meaning Neal can act on his own to issue one. Other House committees in recent weeks have held votes to authorize subpoenas.

“This isn’t a common kind of a standoff,” said Ed Kleinbard, a former chief of staff for Congress’s Joint Committee on Taxation who is now a professor at the University of Southern California’s law school.

Typically, when an administration doesn’t want to provide information sought by Congress, there is usually an attempt at negotiation. But that hasn’t been the case with the tax-returns battle, Kleinbard said.

Additional congressional action is likely to follow if the administration doesn’t comply with Neal’s subpoena.

{mossecondads}Observers who are closely tracking the tax-return fight said the House could consider voting to hold administration officials in contempt of Congress for noncompliance. House Republicans voted in 2012 to hold then-Attorney General Eric Holder in contempt for not complying with a subpoena relating to the “Fast and Furious” gun operation.

But a vote to hold a Trump administration official in contempt wouldn’t necessarily prompt the Treasury Department, which oversees the IRS, to quickly provide Democrats with the tax returns. The Justice Department would be unlikely to prosecute anyone in the administration based on a contempt citation.

“That may have more symbolic value than anything else,” said University of Iowa law professor Andy Grewal, referring to a House vote.

Trump — who in 2016 became the first major-party nominee in decades to not voluntarily release any of his tax returns — has made clear he does not want the documents made public. William Consovoy, a lawyer representing the president, sent a letter to Treasury last week arguing that Neal’s request “is nothing more than an attempt to exercise constitutional authority that Congress does not possess.”

Treasury Secretary Steven Mnuchin told reporters that his agency would likely provide some type of response to Neal by Tuesday, but he didn’t commit to the department finishing its legal review of the request by that date.

Mnuchin has not said whether the Treasury Department would ultimately comply with or reject Neal’s request, but he has said he wants to make sure the IRS isn’t “weaponized” for political purposes — language that GOP lawmakers have frequently used when criticizing Democrats’ efforts.

The growing tensions come amid the backdrop of congressional Democrats charging forward with investigations and subpoenas on several fronts, most notably the recently released report from special counsel Robert Mueller. House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) on Friday issued a subpoena for Congress to receive an unredacted version of the Mueller report, and there are calls for the special counsel himself to testify on Capitol Hill.

The level of fervor guiding those other investigations will undoubtedly have an effect on efforts to secure the president’s tax returns.

Democrats have said for months that they expect the tax-return issue to end up in court. The House would be the entity most likely to sue to enforce their subpoena or the tax code provision under which Neal made his request for the documents.

Congressional Democrats also think a legal fight would lead to a ruling in their favor, arguing there is no wiggle room in the tax code statute and that Neal’s stated purpose for requesting the returns falls squarely within the committee’s authority.

When Neal sent his initial request for Trump’s tax returns to IRS Commissioner Charles Rettig, he invoked a section of the tax code that says the Treasury secretary “shall furnish” tax returns requested by a chair of a congressional tax committee. Neal said his committee wanted the returns because it is considering legislation and conducting oversight relating to how the IRS audits presidents.

But the Trump administration is expected to counter that Democrats don’t actually have a legitimate legislative purpose for their request.

Chris Rizek, an attorney at Caplin & Drysdale in Washington, said he thinks “Congress has the easier argument,” given the statute that Neal used to make his request.

Others have said a judge might find fault with Neal’s stated purpose for seeking Trump’s returns since the chairman said he wanted to look at how the IRS audits presidents, but requested tax filings from 2013 to 2018, both before and during Trump’s time in office.

Harold Krent, dean of Chicago-Kent College of Law, said it’s plausible a judge could decide that some parts of Neal’s request are germane to the Ways and Means Committee’s purposes while others are not. Neal might need to provide a different purpose to obtain Trump’s returns from before his presidency, Krent added.

A big question is whether a court case would be over before the 2020 presidential election, when voters will be deciding whether to give Trump a second term.

A lawsuit would likely be filed in federal district court in D.C., and some legal experts argue that at a minimum a district court judge could make a ruling on a case before the election because many of the facts are fairly straightforward.

“My reading of it is [a court case] could be very fast,” said University of Virginia law professor George Yin.

But the case could ultimately stretch for a considerable amount of time if it is appealed all the way up to the Supreme Court.

Trump’s allies have signaled they would be happy to take the fight to the high court, where the president has appointed two justices — including Brett Kavanaugh, whose nomination was the subject of a bitter fight in the Senate last year.

Former GOP House Speaker Newt Gingrich (Ga.) said in October that if Democrats subpoena Trump’s tax returns, “we’ll see whether or not the Kavanaugh fight was worth it.”