When Democrats seized control of the House of Representatives in 2018, they pledged to start holding President Donald Trump accountable — including, notably, by obtaining his tax returns. But House Ways and Means Committee Chair Richard Neal has been reluctant to aggressively use his authority in demanding the documents, as a new Washington Post report revealed Thursday, allowing the president and the administration to persist in its lawless refusal to comply.
In his trepidation, Neal, a Massachusetts Democrat, even missed a key 15-day window in which he could have obtained the returns, according to the report.
Getting the tax returns in the first place should have been straightforward. The law explicitly says:
Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives … the Treasury Secretary shall furnish such committee with any return or return information specified in such request … [emphasis mine]
There’s nothing ambiguous or unclear about this. Neal has the authority to ask, and Secretary Steve Mnuchin has no choice but to comply. As former federal prosecutor Harry Litman explained in the Washington Post:
"Shall” means, well, shall. The language is the well-established norm, across a range of legal settings, used to denote an absence of discretion on an official’s part. It leaves no room for quibbles by the secretary.
But the administration thinks the law doesn’t apply whenever a particular provision inconveniences the president, so it delayed its response to the request multiple times. Eventually, it claimed that the administration didn’t have to comply with the law because the president was being unfairly and disingenuously targeted, rendering the request unconstitutional. The absurd and implausible argument ultimately comes down to the idea that the president doesn’t have to follow the law if Congress is being mean to him. Of course, neither the Constitution nor the law in question provides any grounds for thinking this is the case. However, it does comport with current GOP orthodoxy that opposition to Trump is de facto illegitimate.
So the battle has landed in court, with Democrats in Congress forced to fight for what is clearly their due. And while Republicans insist that the president is being unfairly harassed, it’s important to remember that Democrats have only requested what every other modern presidential candidate has freely made public before Trump, and what Trump himself has repeatedly promised to release. Given Trump’s unprecedented openness to corruption and conflicts of interest — and his shady opaqueness and broken promise to release the documents — seeing his tax returns is even more important.
The court battle, the Post reported, will likely take a long time:
Several Democrats involved in oversight, including Rep. Daniel Kildee (Mich.) of the Ways and Means Committee, see a long path to getting a final court decision, even if they expect to win in the end. Trevor N. McFadden, a Trump-appointed judge who was assigned the case in July, will hear the case first, and any decision is likely to be appealed to higher courts, up to the Supreme Court.
For it to be resolved by fall 2020 would amount to Democrats drawing a possible but improbable legal “perfect straight,” according to Harry Sandick, former assistant U.S. attorney for the Southern District of New York.
It seems a complete waste of time to take an issue up the Supreme Court when the law is so obviously clear, and where the issue at stake is Trump’s own uniquely corrupt presidency. But just because the law is clear, we shouldn’t assume that the right-wing justices won’t side with the president out of pure partisanship, even if they dress up their arguments with legal formalities.
And while Trump deserves most the blame for pushing his administration into defending a lawless and corrupt position, Democrats — Neal most of all — are also worthy of criticism for dragging their feet on the issue. Demanding Trump’s tax returns could have been one of his first acts upon taking control of the committee, but instead he waited, and wasted, months. And according to the Post, he’s shown private reluctance about fighting the president on this issue:
Neal’s discomfort in confronting the Trump administration has been apparent in internal meetings of the Democrats on the Ways and Means Committee, according to the House Democrat involved in oversight and an aide to a House lawmaker on the committee speaking on the condition of anonymity to talk candidly without fear of professional repercussions. When discussing the subject of the tax returns, Neal frequently tells stories of bipartisan cooperation under former Ways and Means Committee leaders, particularly Rep. Dan Rostenkowski (D-Ill.), pining for an era of political comity that others on the committee believe no longer exists, these people said.
Perhaps the most frustrating part the whole episode is that New York passed a law that would give the chairman that right to request Trump’s state tax returns. The Post reported:
For 15 days after that legislation passed, Neal could have had Trump’s state returns on a direct flight from Albany to Washington, said Daniel Hemel, a law professor at the University of Chicago. But that window closed after Trump’s personal attorneys sued New York to block the law July 23. On Aug. 1, a federal judge ordered New York not to release those returns while the lawsuit is pending.
It’s difficult to judge a lawmaker purely on one anonymously sourced report, but these descriptions of Neal paint the picture of a man not up to the task of holding Trump accountable. Trump is willing to break all the rules to get what he wants; Democrats should at least be aggressive within the rules when trying to counter him.