Published by The Lawfare Institute
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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.
On the one hand, Trump’s tax filings should have seen the light of day long ago. Trump should have released his returns voluntarily—as every elected president since Richard Nixon has. The Trump administration should have allowed the IRS to hand the president’s tax returns over to the House Ways and Means Committee when that panel’s chair, Rep. Richard Neal (D-Mass.), requested those documents in April 2019. And the federal judiciary shouldn’t have allowed Trump to stall the release of his returns for three and a half years through litigation.
On the other hand, the Ways and Means Committee has maintained throughout the litigation over Trump’s tax returns—which culminated with last week’s Supreme Court decision—that it is seeking the documents as part of its plan to review the IRS’s presidential audit program. (The presidential audit program is the procedure—mentioned in an IRS manual but not codified in any statute or regulation—by which the IRS examines individual tax returns filed by the president and vice president each year.) Any 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.
Full disclosure: I’ve been advocating for the release of President Trump’s tax information since April 2017, when I suggested in a Washington Post op-ed and a Yale Law Journal Forum article that New York could enact a law requiring the release of Trump’s state tax filings. I’ve advised state lawmakers in New York on strategies to make Trump’s tax returns public. I’ve criticized House Ways and Means Chairman Neal for acting too slowly to obtain Trump’s returns. So I’m no apologist for Trump’s tax secrecy.
Still, 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.
The Hard Question: Should House Democrats Make Trump’s Tax Returns Public?
Before delving into the normative question of whether the House Ways and Means Committee ought to publish Trump’s tax returns, let’s clear three points out of the way.
First, presidents ought to release their tax returns. Disclosure of presidential tax returns helps to dispel the pernicious notion that taxpaying is only for the “little people.” Disclosure also helps voters and lawmakers evaluate presidential conflicts of interest (for example, by revealing whether presidents would benefit personally from their administrations’ tax proposals). Finally, disclosure serves as a check on improper presidential influence over the IRS. By virtue of their position at the apex of the executive branch, presidents are the nation’s tax enforcers-in-chief, but they are also taxpayers against whom the federal tax laws may be enforced. Disclosure helps to reduce the risk that presidents will exploit their dual roles to their own pecuniary advantage.
Second, the Trump administration should have allowed the IRS to release Trump’s tax returns to the House Ways and Means Committee when Chairman Neal requested those returns in April 2019. Section 6103(f)’s instructions are clear: “Upon written request from the chairman of the Committee on Ways and Means” or the chair of the other congressional tax panels, the treasury secretary (or the IRS commissioner as the secretary’s delegee) “shall furnish such committee with any return or return information specified in such request” (emphasis added). The statute makes no exception for cases in which disclosure might embarrass the president. And while case law suggests that the executive branch may reject an information request from Congress if the request does not further a “legitimate task of Congress,” Neal’s April 2019 request manifestly stated a legitimate basis: so that his committee could conduct oversight of the IRS’s presidential audit program and, if needed, consider legislative reforms related to presidential audits.
Third, the litigation over Neal’s April 2019 request shouldn’t have dragged on for as long as it did. It was nearly three and a half years ago—in July 2019—when the House Ways and Means Committee first asked a D.C. federal district court to order the IRS to hand over Trump’s returns. The lengthy delay in resolving that litigation meant that Trump could effectively evade congressional oversight of the presidential audit program for the duration of his term. Fault for the delay lies at the feet of multiple people—and Neal himself bears some culpability for waiting until April 2019 to submit his request and until July 2019 to file his lawsuit rather than seeking the returns immediately after Democrats took control of the House in January of that year. However one allocates blame, though, it shouldn’t take three and a half years for the federal courts to confirm that the word “shall” in Section 6103(f) really means “shall.”
But here we are in December 2022, and over the course of the three-and-a-half-year fight over Trump’s returns, Neal and other members of the House Ways and Means Committee made several statements that constrain their options now. In the initial April 2019 letter requesting Trump’s returns, Neal said his committee needed the documents “to determine the scope” of the IRS’s audit of the president “and whether it includes a review of underlying business activities required to be reported on the individual income tax return.” As recently as last month, the Ways and Means Committee told the Supreme Court that its document request “is well-tailored to illuminating how the IRS conducted any audits of Mr. Trump while he was President and whether reforms are needed to enhance the IRS’s ability to audit Presidents in the future.” Throughout the litigation, Neal and the House Ways and Means Committee adamantly denied that “the request is driven by exposure solely for the sake of exposure” (as Trump had argued). In a June 2021 letter to Treasury Secretary Janet Yellen and IRS Commissioner Charles Rettig, Neal put it succinctly: “There have been claims”—including from Trump himself—“that the true and sole purpose of the Committee’s inquiry here is to expose President Trump’s tax returns. These claims are wrong.”
Plainly, the House Ways and Means Committee is not going to be able to carry out a thorough evaluation of the IRS’s presidential audit program in the four and a half weeks between now and the GOP takeover. The committee’s document request is extensive: It has asked for returns filed by Trump and seven of his business entities from tax years 2015 through 2020, a status report for each audit, and administrative files such as examiner workpapers associated with each of the Trump returns. With competing demands for the attention of committee members and staffers (including a Dec. 16 deadline to avert a government shutdown), reviewing those documents may consume the better part of the next four and a half weeks. But even after the committee reviews all those documents, it will still need more information before it can complete the comprehensive assessment of the presidential audit program that it has promised.
For example, the committee will need to know how the IRS’s handling of items on Trump’s tax returns compares to the service’s treatment of similar items on returns filed by other high-net-worth business owners who weren’t president of the United States. If the IRS allowed Trump to claim an inflated charitable contribution deduction for a conservation easement at his golf course in Westchester County, New York, is that because examiners gave special treatment to Trump, or is it because the service generally lacks the resources to challenge conservation easement appraisals? The committee also will likely need to hear testimony from IRS examiners involved in the presidential audit program. Did they personally experience improper political influence? And the committee will need to compare the audits of Trump’s returns to audits of other presidents and vice presidents. For example, when Joe Biden became president, did the IRS go back and review Biden’s aggressive use of a self-employment tax loophole to save hundreds of thousands of dollars on his and his spouse Jill’s 2017 and 2018 returns? While Biden—unlike Trump—released his returns voluntarily, we don’t know what happened to those filings after they entered the IRS audit vortex.
To be sure, the House Ways and Means Committee could begin its review of the presidential audit program now and then release everything it has when the clock strikes noon on Jan. 3, like a test-taking student who drops her pencil mid-sentence when the proctor says “time’s up.” Trump’s tax returns and additional information collected by the committee would then enter the public domain, allowing journalists and others to probe further. If Neal and the House Ways and Means Committee had said all along that their purpose was to vindicate the principle of presidential tax transparency using the powers at their disposal under Section 6103(f), perhaps that course of action would be justified. Indeed, releasing Trump’s tax returns for the sake of releasing Trump’s tax returns might not be such a bad thing—given all the arguments for presidential tax transparency outlined above.
Yet Neal and the House Ways and Means Committee insisted all along that their motive was not exposure for the sake of exposure. That was a strategically wise thing to say for litigation purposes, but the statement circumscribes what they can (or, at least, should) do next. Neal and the House Ways and Means Committee would undermine their own credibility—and could be seen as hoodwinking the courts and the public—if they proceeded to release the returns outside the context of a comprehensive review of the presidential audit program.
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.