On Wednesday, the New York State Senate approved two important bills that could shape the legal fight over President Donald Trump’s tax returns and his pardon power, if they become law. But one of those bills—the one allowing New York State to give tax returns upon a request from Congress—also includes a word that could undermine the U.S. House of Representatives’ efforts to get Trump’s state taxes. That specific word is specific. And that word gives the House a new reason—in addition to all the ones it already possesses—to initiate a formal impeachment inquiry.
That step is already warranted by the Mueller report’s evidence that the president may have committed obstruction of justice (and by at least a preponderance of evidence, coordinated with Russia illegally). But when a court, interpreting the text of this potential new law, asks the House to identify its “specific and legitimate legislative purpose” for seeking Trump’s tax returns, it’s also the more specific and honest statement of the House’s purpose, and thus, more likely to prevail. In fact, a formal impeachment inquiry could be the honest legal move that saves all the House subpoenas from new conservative legal interpretations.
Section 6103(f) of the Internal Revenue Code states that “upon written request” from the chair of the House Ways and Means Committee, the Treasury secretary “shall furnish such committee with any return or return information specified in such request.” Many observers have assumed that the word shall does all the work to compel Treasury Secretary Steven Mnuchin to turn over the returns, but that bit of text must be understood in the larger context of constitutional law and precedent. Such a request, like a subpoena, must have a “legitimate” purpose.
On Monday, Mnuchin rejected the request from Ways and Means Chair Richard E. Neal because it “lacks a legitimate legislative purpose,” declaring that he could not disclose the returns. This dispute will head to the courts to evaluate whether there is a “legitimate legislative purpose.”
But meanwhile, the New York legislature is considering a second track. The bill passed by the Senate (which would still require the approval of the assembly and the signature of the governor to become law) would authorize the Department of Taxation and Finance to share state tax-return information with the relevant congressional committees as long as there is a “specific and legitimate legislative purpose.” Note that extra word, beyond what Mnuchin himself cited: specific. Perhaps New York legislators added this word as a compromise to allay the valid concerns of those worried about overbroad fishing expeditions and vague requests that might be pretexts for a partisan purpose.
That’s exactly the point. Americans should be wary of changing our laws too abruptly just to investigate Trump. When the last law is down, as Robert Bolt wrote, the devil may turn round on you, and where would you hide? Some curbs seem necessary, to guard against future abuses. The word specific can have several meanings, but some definitions of specify suggest a connection to the word clarify. A plausible reading is that the New York legislature added the word specific to eliminate pretextual or misleading explanations.
And let’s be honest. Is Neal seeking Trump’s tax returns because he is mainly interested in the IRS’s methods? To see whether Trump owes back taxes? It is far more likely that he wishes to know whether Trump has debts or financial ties that may compromise him, or whether he has links to money laundering. That would make the request part and parcel of an impeachment inquiry, whether or not the House makes that explicit.
House Democrats already had good reason to formally launch an impeachment inquiry and then connect their subpoena requests and tax requests to this proceeding. A growing chorus of conservative legal commentators is floating the argument that a request for tax returns driven by partisan politics is not a “legitimate purpose,” even if the House cites other purposes. Some legal experts are making a constitutional argument that such requests violate the separation of powers, unless the House is formally pursuing impeachment. This argument would challenge most of the House subpoenas.
Some of these claims seem to be a serious legal stretch, but that’s no reason not to take them seriously. There are at least two recent examples of novel or surprising legal claims being entertained by the courts, both from the litigation surrounding the Affordable Care Act. When parties first challenged the individual mandate as exceeding Congress’s enumerated powers, many observers laughed, but conservative commentators built up a more plausible case. The individual mandate barely survived, but it would have been on much stronger ground if Congress had been more honest in calling it a tax. Congress, though, had wanted to avoid the political risk of explicitly creating a new tax, and the Supreme Court almost made it pay a steep price for this pretext and this fear of transparency.
A few years later, the Supreme Court reviewed whether the ACA allowed the federal government to create exchanges when it used the word state. Narrow textualists would say no. But the Supreme Court ruled that the purposes of a law were relevant, not just a simple reading of a word. So, too, the federal courts could rule that the word shall is not the end of the story.
Some of these arguments are more persuasive than others. The purpose of the Constitution’s structure, and of other statutes that compel compliance with congressional subpoenas, is to prevent abuses of legislative power. Hypothetically, if a Treasury secretary knows that a request is part of a blackmail scheme or an effort to embarrass a political opponent, then the secretary would have grounds to reject the request, regardless of the word shall.
In the context of 2019, with Trump and the Republicans having dramatically shifted the federal judiciary, is it imaginable that some judges might view Neal’s request as primarily political and partisan? Is it possible that these judges would regard the current explanations from Neal about “oversight” as pretexts hiding a political purpose, and reject the requests? If Trump went to federal court to enjoin New York State from handing over his taxes, could his lawyers argue that the House had failed to specify a legitimate purpose because it offered a pretext and cowered from stating its true purpose?
Voting to authorize an impeachment inquiry would put such questions to rest. Impeachment is explicitly granted as a constitutional power, which would address the separation-of-powers concerns that conservatives have been raising.
The bottom line is that if House Democrats want a strong and legitimate legal argument for getting Trump’s tax returns from the Treasury or from New York State—or getting bank records, or getting its other subpoena to prevail in court—they need to vote to start a formal impeachment inquiry. Then they can specify a deeply legitimate reason for their request: There is a credible question as to whether the president has committed high crimes and misdemeanors. His tax records and the Trump Organization tax records may provide evidence of the motives, or perhaps even of underlying crimes, that led to his campaign’s exploitation of Russian interference in the election, and to his own efforts to obstruct justice. Such a brief would have the virtue of being honest and forthright, as well as being stronger legally. Let’s see whether the federal judges would rule that this purpose was not specific and not legitimate. If they did, then at least it would clarify—and specify—who was and was not truly legitimate.
Read more: theatlantic.com