Donald Trump Will Need to Hand over His Tax Returns

By David French

Monday, April 22, 2019

I believe three things at the same time. First, Donald Trump should have voluntarily produced his tax returns years ago. Second, the law Democrats are using to demand production of Trump’s returns — which grants the chairman of the House Ways and Means Committee the right to see the returns of any American taxpayer — is overbroad and vulnerable to abuse. And third, the lawsuit Trump has just filed in hopes of repelling that demand is both frivolous and (to the extent the courts pay it any mind) dangerous to our constitutional system of checks and balances.

The core problem with Trump’s lawsuit is clear: It defies Congress’s inherent investigative authority by defining Congress’s “legislative sphere” so narrowly that it would prohibit Congress from meaningfully investigating the president.  Moreover, it argues, “‘Oversight’ and ‘transparency,’ in a vacuum, are not legitimate legislative purposes that can justify subpoenaing a private citizen.”

But wait. Didn’t we just finish a multi-year national ordeal during which Donald Trump’s defenders consistently argued that investigation of the executive branch was a legislative function — i.e. that it was ridiculous for the executive branch to “investigate itself,” and it was ridiculous for anyone to believe that the president could obstruct justice if he tried to impede or supervise that probe, because the investigators worked for him?

Yes, yes we did. So it strains credulity for those same folks, when Congress launches such an investigation — empowered, in this case, by a specific statute that grants it the ability to see Trump’s returns and by an enormous reservoir of inherent authority through its lawmaking and impeachment powers — to turn around and argue that it’s acting as “law enforcement,” and law enforcement is exclusively the president’s responsibility.

Fortunately, the Supreme Court agrees. In Eastland v. United States Servicemen’s Fund, a private anti-war organization challenged a congressional subpoena aimed at its bank, claiming that the subpoena violated its First Amendment rights. The Supreme Court held that the subpoena was “immune to judicial interference” under the Constitution’s speech-or-debate clause, because the subpoenaing committee’s actions fell within the “legitimate legislative sphere.”

As the Court noted, the purpose of that clause — which prevents members of Congress from being “questioned in any other place” about their “Speech or Debate in either House” — is to “insure that the legislative function the Constitution allocates to Congress may be performed independently.” And, make no mistake, the legislative function is not confined to debating and passing legislation. The legislative function includes investigation. Here’s the Court in Eastland:

The power to investigate and to do so through compulsory process plainly falls within that definition. This Court has often noted that the power to investigate is inherent in the power to make laws because “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.” . . . Issuance of subpoenas such as the one in question here has long been held to be a legitimate use by Congress of its power to investigate.

“Where the legislative body does not itself possess the requisite information — which not infrequently is true — recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.” [Internal citations omitted.]

Moreover, the demand for Trump’s returns clearly pertains to an area where “legislation could be had.” The private business activities of American presidents are subject to congressional regulation (within constitutional limits), and knowledge about those activities is relevant to congressional decision-making. Impeachment, too, is clearly and unequivocally a legislative function. Indeed, it’s exclusively a legislative function.

And while Trump is right to be skeptical of the Democrats’ motives for demanding his returns (there is more than the whiff of a fishing expedition to the request), the Supreme Court has made it clear that “in determining the legitimacy of a congressional act [under the speech-or-debate clause] we do not look to the motives alleged to have prompted it.” The clause protects against even an “inquiry” into the “motivation” for the relevant congressional act.

It’s hard, then, to view Trump’s lawsuit as anything other than a delaying tactic, an excuse for defying an applicable federal statute while the case winds through the courts. But delaying tactics should not so explicitly challenge our proper constitutional order. Congress has the power — by statute and through the Constitution — to demand Trump’s tax returns. Courts should promptly reject Trump’s suit, and Trump should produce his returns. Trump may disagree with the law that grants Congress such broad authority, but it is the law, and presidents must comply with the law.