The Supreme Court’s twin rulings Thursday in cases involving President Trump’s financial records virtually assure that the 45th president will succeed in shielding his tax returns from the public until after the November election. This is a remarkable feat for a president whose six immediate predecessors all released their returns while in the White House. How did Trump pull it off?
In typical Trumpian fashion, he did it, in part, by lying outright. Trump said in May 2014 that he would “absolutely” release his returns if he ran for president, which proved to be absolutely false. But he couldn’t have done it alone. The president also received substantial aid from others — including some Democrats — who made it possible for him to hide his tax documents from the American people, Thursday’s Supreme Court rebuke notwithstanding.
Presidents releasing their tax returns to the nation had become a 40-year-old bipartisan tradition by the time Trump entered the Oval Office in January 2017. The practice served several functions. It assured Americans that taxes were not only for “the little people” — we knew that when we paid up, our leaders did, too. It allowed us to assess whether presidents pursued tax policies that were in the national interest or their own, and it gave us insight on possible financial conflicts that might cloud their judgment. It also served as a check on the Internal Revenue Service, which is in the uncomfortable position of auditing its own boss. When President Richard Nixon was in office, the IRS overlooked improper deductions that allowed Nixon to reduce his tax bill by hundreds of thousands of dollars. In making their returns available for public inspection, later presidents reduced the risk that they might receive favorable treatment from the agency.
So the three Republican and three Democratic presidents before Trump released their returns. And just as it took a bipartisan effort to entrench the practice, it took bipartisan inaction to unravel it.
Once it became clear that Trump would not release his returns voluntarily — and by April 2017, the first tax deadline after he took office, that was clear enough — Congress could and should have acted swiftly. A federal statute dating to 1924 empowers the chairs of the congressional tax-writing panels to obtain any tax return from the IRS by written request. In 2017, the House committee was headed by Rep. Kevin Brady (R-Tex.), and then-Sen. Orrin Hatch (R-Utah) ran the Senate committee. Either of them could have asked the IRS for Trump’s returns. Neither did.
The IRS, though, isn’t the only agency with access to Trump’s tax filings. New York state’s Department of Taxation and Finance holds residents’ tax records dating back decades, and the New York-born-and-bred Trump would have filed annual returns with the state for almost his entire adult life. In April 2017, two New York legislators, Assemblyman David Buchwald and Sen. Brad Hoylman, both Democrats, introduced a careful bill that would have brought those records to light.
The legislation would have required state tax authorities to release years of returns filed by anyone elected statewide in New York, whether to state posts like the governorship or federal ones like the U.S. Senate — and by any president or vice president who filed taxes with the state. Because of privacy considerations and a tangle of federal legal limitations, it wouldn’t have resulted in the full release of Trump’s state taxes, but it would have revealed enough for us to know whether our president is a total tax scofflaw. In a deep-blue state that is deeply skeptical of its native son, the bill should have passed easily.
But it didn’t. Even though a majority of the Assembly co-sponsored the bill, Assembly Speaker Carl Heastie, a Bronx Democrat, never brought it to a floor vote. In the state Senate, the legislation made little progress because a group of disgruntled Democrats had defected from their party and thrown control of the chamber to Republicans, who showed little interest in butting heads with a president of their own party.
After Democrats took control of the U.S. House in January 2019, the prospects for congressional action began to brighten. That month, Rep. Richard Neal (D-Mass.) became chairman of the House Ways and Means Committee, which gave him the legal authority to obtain the president’s tax returns from the IRS. Trump’s GOP could no longer use its stranglehold on key congressional committees to keep his returns from public view.
Neal knew that the Trump administration would resist handing over the filings. He also knew that to enforce the 1924 statute, he would probably have to sue the administration. That made it all the more imperative for Neal to issue his demand quickly, so that there was some chance the courts could resolve the issue before the end of the two-year congressional term.
Instead, Neal waited three months before seeking Trump’s returns from the IRS, then three more months before filing a lawsuit to enforce the demand. By July 2019, when Neal finally filed his suit, Trump had already burned a half-year off the clock — effortlessly.
(Contacted by The Washington Post, Neal said in a statement that the court decision “shows the importance of acting methodically and deliberately in pursuit of the president’s records” and that “because of the committee’s thoughtful work, I am confident that our request meets the considerations now articulated by the Supreme Court.”)
Meanwhile, in Albany, Buchwald and Hoylman managed to push a narrower bill into law last year. That legislation authorized the state tax commissioner to share certain tax documents with congressional investigators “in furtherance of a legitimate task of the Congress” — but only if the chair of the House Ways and Means Committee or the Senate Finance Committee submitted a written request first.
New York Gov. Andrew Cuomo signed the law on July 8, 2019. At any point after that, Neal could have asked state officials to send Trump’s tax documents to Washington.
For two weeks, Neal did nothing. Then on July 23, Trump sued to nullify the New York law. That suit was dismissed on jurisdictional grounds by a Trump-appointed federal district judge in Washington in November. Neal, though, has still not asked for New York’s help in obtaining the president’s tax records. And other House Democratic leaders don’t appear to have pushed him to, at least not publicly.
Thursday’s rulings address two other efforts to obtain information about Trump’s finances. In one of those cases, the court tossed the president’s risible claim that he enjoys “absolute immunity” from state criminal subpoenas while in office — potentially clearing the way for a Manhattan grand jury to obtain his tax returns from his longtime accountants.
But the well-reasoned ruling by Chief Justice John Roberts returns the case to district court, where Trump will have an opportunity to fight the subpoena on narrower grounds. He then will probably appeal again to the U.S. Court of Appeals for the 2nd Circuit in New York, and then — if only to stall for time — might take another shot at the Supreme Court. That whole process took nearly 10 months the last time around, and there are only four months until the general election. And if and when Trump ultimately loses, grand jury secrecy rules will prevent the public from seeing his tax records in that New York case — for the foreseeable future, anyway.
The court’s other ruling addresses subpoenas by three House committees for records held by Trump’s accountants and two banks. Again, the justices rejected the president’s most sweeping arguments for immunity from oversight, instead instructing lower courts to reexamine the validity of the subpoenas under a new four-part test.
That almost certainly means two more rounds of briefing — at the trial level and again at the appellate level — which would typically take the better part of a year. And though the courts could conceivably speed up the process, we will probably be well into Trump’s second term or Joe Biden’s first before the case is resolved once and for all.
So even though Trump has now lost resoundingly at the Supreme Court twice over, we’re still not far from where we started. In 16 weeks, voters will go to the polls to decide whether to give Trump a second term — still without seeing the returns he promised to release in his first run.
No one bears more of the blame for this than Trump, who once again flouted long-standing norms and once again appears to have escaped the consequences. But, to mangle a proverb, it takes a village to hide a man’s tax returns. In this case, it was two villages: Washington and Albany. Legislative leaders in both capitals effectively let Trump off the hook. We should not forgive their failure so easily.
Twitter: @DanielJHemel
