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INSIGHT: Sorting Through the Trump Subpoena Maze

May 8, 2019, 8:01 AM

It’s congressional subpoena time for the world of Donald Trump. He has taken the position that they are all politically motivated and that he will fight them all.

The House, citing its oversight function, claims that the courts must give it everything it demands.

The right answer lies somewhere in between, mainly because the subpoenas ask for different kinds of information, with different justifications, with some directed at private parties and others seeking records from the Trump administration.

The most high-profile demand is that of the House Ways and Means Committee. Relying on a 1924 statute, it has ordered the Internal Revenue Service to give it the Trump’s personal tax returns, not just for the years he has been in the White House, but going back to well before he was a candidate for president.

Statute Used for Decades

The fact that there is a statute, which has been used for decades without any apparent difficulty, strengthens the House’s case. Moreover, the power to obtain tax returns is not limited to the president’s, let alone this president, undercutting the claim that the request is a political fishing expedition.

But why does the committee want to examine the returns, if not to embarrass the president?

To date it has not offered a full justification, but several come to mind. After the IRS did a very incomplete job of reviewing the tax returns of Richard Nixon when he took a huge deduction for donating his vice presidential papers, Congress insisted that the IRS do a full annual audit of the tax returns of the president and vice president, and the committee has a legitimate interest in seeing whether that was properly done.

In addition, the committee writes the tax laws, and seeing the tax returns of a major player in the real estate industry, which is known for not paying much in the way of federal taxes, it may learn about some loopholes that need closing. Moreover, since the demand is for the tax returns of Donald Trump, private citizen, it is hard to imagine any separation of powers argument based on presidential powers that will prevent a court from ordering that the returns be made available to the committee.

In all likelihood, the president, like any other taxpayer, is much less concerned with providing his returns to Congress than with what Congress might do with them after that.

Committee Has Discretion

In contrast to the statute that places severe limits on what the IRS and others in the executive branch can do with individual tax returns, the law applicable to Congress says nothing more than that the returns have to be made available in closed executive session, which seems to allow the committee to decide to make them public if it chooses.

That should worry anyone who might find him or herself cross-wise with one of the tax writing committees, and a judge who is being asked to enforce a demand for President Trump’s tax returns could properly insist on a bar on further disclosure, absent a good reason for doing so and court approval.

The House is also investigating allegations that security clearances were granted to certain White House advisers, including the president’s daughter and son-in-law, over the objection of career personnel, perhaps in contravention of existing laws.

Congress plainly has a legitimate interest in assuring that its laws guarding military and foreign affairs secrets are adequate and properly implemented. To make that assessment, the House will probably need personal information about some of the persons whose clearances are in dispute, as well as the national security reasons for the objections, to determine whether legislative changes are needed.

But again, there is a danger that the personal information about some of these individuals might become public. If Congress and the White House cannot reach agreement on protecting this information, the courts may be needed to step in to protect that private information, without hindering the congressional investigation.

Then there are the subpoenas to Deutsche Bank and the accounting firm that handled Donald Trump’s taxes and financials. What stands out about those subpoenas is that most of what they are seeking are documents created before Trump became president, or even a candidate. Surely they do not come within any definition of oversight of federal agencies.

Perhaps some of the more recent records might shed light on Trump’s financial disclosures, or perhaps weaknesses in the law, but it is hard to believe that most of the subpoenaed records fall into that category. And once again, there is the issue of the potential for the release to the public of sensitive financial information for no valid public purpose.

Important Issues

Two other aspects of these subpoena battles are worth noting.

First, in most investigations, details matter, which means that, in almost every case, Congress must have access to unredacted records that are relevant to its legislative purpose and must not have to accept deletions of names and numbers. The problem is to provide complete access while guarding against unwarranted disclosure of personal information.

Second, under the Constitution, the House has exclusive authority to initiate impeachment proceedings against a president and other high ranking officials. The House might be tempted to throw in “possible impeachment” as a basis for all its demands, but courts should not permit such blanket claims to suffice, especially when the evidence sought relates to pre-governmental conduct or activities that plainly fall outside the admittedly broad reach of impeachment.

In the opening round of these subpoena battles, the House is waving the oversight banner, while Trump is claiming that it is all a political vendetta. As the process is refined, the courts should focus on the legitimate legislative ends sought with each demand, while keeping an eye on legislative excesses that might unnecessarily disclose sensitive personal or financial information of anyone, including the president.

Finally, there is a touch of irony, or perhaps hypocrisy, in the president’s refusal to cooperate in any way with the House’s investigations. Beginning shortly after President Trump was inaugurated, lawsuits were filed claiming that foreign governments were patronizing his vast business interests, in violation of the foreign emoluments clause.

In addition to his defense on the merits, the president, generally represented by lawyers from his Justice Department, have urged the courts to dismiss the case, arguing that an investigation of these matters is up to Congress, not the federal courts.

Oh well.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Alan B. Morrison is the Lerner Family Associate Dean for Public Interest and Public Service Law at the George Washington University Law School. He teaches constitutional law with a particular focus on issues of separation of powers.