Acting White House chief of staff Mick Mulvaney confidently declared this weekend that congressional Democrats will “never” see President Donald Trump’s tax returns. House Ways and Means Committee Chair Richard Neal, who formally requested those returns last week, has predicted a “long and grinding” court battle before his committee can obtain Trump’s tax filings. Both men may be underestimating the speed with which House members can get their hands on Trump’s tax information. It need not take years—or even months. Indeed, with a little help from Trump’s home state, his tax filings could be in the Ways and Means Committee’s possession within a matter of days.
As Frank Sinatra famously crooned, “It’s up to you, New York, New York.”
Trump, as a lifelong Big Apple resident with business interests across the state, has been filing state income tax returns in New York for years. Those state income tax returns reveal much of the same information as his federal returns, and Trump also must submit various federal tax forms as attachments to his state tax filings. As a result, New York now possesses a trove of tax information relating to the president, his businesses, and his family trusts.
Now, with top Trump administration officials indicating that they won’t honor a lawful demand for Trump’s tax returns, New York could play a pivotal role in putting Trump’s tax filings in the hands of Congress—and, potentially, bringing them into public view.
There are at least three possible ways that some or all of Trump’s tax filings might make it out of the Empire State and into the possession of congressional investigators. First, and most straightforwardly, the House Ways and Means Committee could subpoena Trump’s tax records from state officials. Second, New York state lawmakers could authorize the state tax commissioner to share Trump’s tax information with the House Ways and Means Committee. Third, state lawmakers could vote to release Trump’s tax filings to the public—potentially as part of a more comprehensive tax-transparency package—which, of course, would allow Ways and Means members to see them too.
Let’s start with the first route, which is also the simplest: The House Ways and Means Committee would vote to issue a subpoena to the state tax commissioner for all of Trump’s tax records from the past decade that New York now has. (And it has them. Indeed, the state appears to keep individual tax records from 1990 onward on hand.)
According to the Supreme Court, Congress’ power of inquiry—and its authority to subpoena documents and witnesses in the course of its inquiry—is “broad,” though “not unlimited.” The subpoena-issuing committee must have a “justification in terms of the functions of the Congress” for its evidentiary demands. Neal, a Massachusetts Democrat, already articulated such a justification in the letter he sent to the IRS last Wednesday requesting Trump’s returns dating back to 2013. The Ways and Means Committee, according to Neal, has “a responsibility to ensure that the Internal Revenue Service … is enforcing the laws in a fair and impartial manner” and the committee is “conducting oversight related to … the extent to which the IRS audits and enforces the Federal tax laws against a President.” The committee, in other words, wants to know whether the IRS—a part of the executive branch under the president’s aegis—is rigorously applying the tax laws to its own boss.
The IRS already recognizes the risk of partiality—or at least, the appearance of partiality—in its examination of the president’s taxes. To minimize this risk, the IRS’s manual mandates that the returns of the president and vice president will be audited each year by a team in Baltimore out of the view of other IRS employees. And it’s not just the president and vice president: The IRS also runs special audits of its own employees because, as the agency acknowledges, “public trust” in the tax system is bolstered when taxpayers know that the enforcers of federal tax laws “fully comply” with those laws themselves. This rationale applies doubly to the president because, under the Constitution’s Take Care Clause, he is the person chiefly responsible for the enforcement of federal tax laws and all other federal laws.
But the IRS’s special audit procedure does not appear to apply to tax returns filed by a president before his inauguration that are still under examination when he takes office. This omission is especially significant with respect to Trump, whose lawyers said in March 2016 that his returns for every year from 2009 onward remained under review. The special procedure for presidential and vice presidential audits also does not appear to apply to returns filed by business entities affiliated with the sitting president. The Ways and Means Committee thus has ample cause for concern about possible pro-presidential bias in the IRS’s handling of Trump’s returns—a concern that would only be exacerbated if, as he has indicated he would do, Treasury Secretary Steven Mnuchin takes the highly unusual step of intervening in the IRS’s response to Neal’s request.
Keep in mind that neither Mnuchin nor anyone else in the Trump administration should be able to block the Ways and Means Committee chair from obtaining these documents. Section 6103(f) of the Internal Revenue Code provides that “upon written request” from the Ways and Means chair, the treasury secretary “shall furnish such committee with any return or return information specified in such request.” A Section 6103(f) request—like a subpoena—must be backed by a “legitimate” purpose, but Neal’s request for Trump’s tax returns easily clears that bar.
Unfortunately, it appears that the Trump Treasury Department won’t follow the law without a court fight. Fortunately, nothing stops the Ways and Means Committee from pursuing a backup plan while the treasury secretary stalls for time.
It could put the backup plan into effect tomorrow: The committee would issue a subpoena to the New York state tax commissioner, and the commissioner would be obligated to comply. Indeed, the Supreme Court has said that it is the “unremitting obligation” of “all citizens” to “respond to subpoenas” from congressional committees. In the event that New York refused, the full House could authorize the Ways and Means Committee to file a lawsuit in federal court in New York to enforce the subpoena.
But it would be surprising if New York resisted the Ways and Means Committee’s demands. New York officials would likely recognize that the law is on the Ways and Means Committee’s side. Ways and Means Committee members have thought that they would be ensnared in a knock-down, drag-out legal fight with the Trump administration over Chairman Neal’s Section 6103(f) request, but if the Ways and Means Committee sends a subpoena to New York, the committee could have access to a wealth of Trump tax filings in a matter of days.
New York law, to be sure, restricts the conditions under which the state tax commissioner can share taxpayer information. But the state’s secrecy statute applies “except in accordance with proper judicial order or as otherwise provided by law.” A congressional subpoena would seem to satisfy the “otherwise provided by law” prong, and a federal court order enforcing the congressional subpoena would certainly meet the “proper judicial order” condition.
Federal civil and criminal penalties apply to the disclosure of tax returns, but these laws do not cover state returns or federal forms that are attached to state filings. This much can be gleaned from the statute itself, and the Joint Committee on Taxation has made this crystal-clear: According to the committee, “the copies of the Federal returns or the return information required by a State or local government to be attached to, or included in, the State or local return do not constitute Federal ‘returns or return information’ subject to the Federal confidentiality rules.”
Although a congressional subpoena would be the simplest and fastest way to get Trump’s tax filings into the Ways and Means Committee’s possession, it would require the committee to take the initiative. Rather than waiting for Ways and Means to act, New York lawmakers are taking matters into their own hands and pursuing a second strategy: amending the state’s tax secrecy statute to explicitly allow the tax commissioner to release returns to congressional committees.
State Sen. Brad Hoylman, a Manhattan Democrat, introduced a bill Monday to do just that. The bill would authorize the state tax commissioner to furnish the House Ways and Means Committee, the Senate Finance Committee, or the Joint Committee on Taxation with “any returns or return information” filed with New York state if the chair of the requesting committee certifies in writing that the information is sought for a “specified and legitimate legislative purpose” and that the committee already attempted to obtain the information from the treasury secretary under Section 6103(f). After a Cuomo administration official initially criticized the bill, the governor’s office backtracked Monday afternoon and endorsed the legislation. And with Democrats now in control of both chambers of the state Legislature, Hoylman’s bill—supported by a powerful governor—stands a strong chance of becoming law.
Hoylman’s bill would accomplish the same thing as a Ways and Means Committee subpoena, with one wrinkle. A separate part of Section 6103—paragraph (p)(8)—provides that the IRS cannot share federal return information with state officials unless the state “adopts provisions of law which protect the confidentiality of the copy of the Federal return … attached to, or the Federal return information reflected on” the state’s own returns. The Trump administration might argue—rather dubiously—that if New York passes Hoylman’s bill, the state will no longer have “adopt[ed] provisions of law which protect the confidentiality” of federal return information. That wouldn’t expose New York officials to civil or criminal penalties, but it could conceivably cause the IRS to cut off information-sharing with New York state tax authorities.
This argument is dubious for two reasons. First, the Joint Committee on Taxation and the one federal court to address the issue have both said that a state satisfies Section 6103(p)(8) even if its own confidentiality statute isn’t identical to federal law. New York’s current tax secrecy statute, for example, allows state tax authorities to share taxpayer information with certain other state officials who administer state welfare, unemployment insurance, and child support laws, and with tax authorities from other states. If none of that trips up Section 6103(p)(8), it’s hard to see why adding three congressional committees to the list of potential recipients would. Second, even though states don’t need to mirror federal confidentiality laws, Hoylman’s bill essentially does. Federal law says that the House Ways and Means Committee, the Senate Finance Committee, and the Joint Committee on Taxation are entitled to taxpayer information upon written request (at least when they have a legitimate basis for that request), and Hoylman’s bill says the same.
On top of all that, the threat that the IRS would cut off cooperation with state tax authorities under Section 6103(p)(8) operates somewhat like a Cold War–era nuclear deterrent: If the IRS followed through on this threat, New York would no doubt retaliate, and consequences for the administration of federal tax and nontax laws would be dramatic. As Arizona State University law professor Erin Scharff has documented, the IRS and other arms of the federal government are heavily dependent upon state authorities for a wide variety of data—such as state death records that allow federal officials to detect fraudulent tax refunds and Social Security claims as well as licensing data that helps the IRS identify small businesses that have not filed federal taxes. Although it’s impossible to put anything past this president, for the Trump administration to cut off cooperation with New York state tax authorities would be slicing off its nose to spite its face.
In sum, Hoylman’s bill could accomplish virtually the same thing that a Ways and Means Committee subpoena would: It would allow New York state officials to share Trump’s tax filings with congressional investigators. Perhaps the most significant difference between these two pathways is that a subpoena is mandatory, while Hoylman’s bill is permissive. That is, Hoylman’s bill says that the state tax commissioner “may furnish” return information with the Ways and Means Committee—not that he must. Although the Cuomo administration has not indicated that it would make use of this wiggle room, the subpoena route leaves state officials with no such discretion.
There is a third way for New York to get Trump’s tax information into the Ways and Means Committee’s hands, and that is to release it everyone. A separate bill pending in the state Legislature would accomplish that end by requiring the state to release returns filed by all officials elected on a statewide basis—including the president and the vice president (if they file returns in New York) as well as the governor, lieutenant governor, comptroller, and attorney general. A majority of the members of the state Senate and state Assembly have signed onto the legislation as sponsors and co-sponsors, and Assembly Speaker Carl Heastie has said that Democrats in his chamber will consider the legislation at the end of this month. (Disclosure: for the past two years I have been an informal adviser to Assemblyman David Buchwald, a Westchester Democrat who has sponsored and tirelessly championed this bill.)
Importantly, the three pathways to Trump’s tax returns are not mutually exclusive: State lawmakers could, for example, move forward with Hoylman’s bill and Buchwald’s more comprehensive legislation—which Hoylman has sponsored in the state Senate—even as they wait for a House Ways and Means Committee subpoena. And they are not entirely duplicative: The subpoena route and the Hoylman bill would get the tax returns into the Ways and Means Committee’s hands, whereas Buchwald’s bill would serve the additional function of bringing them into public view. Note, though, that once the Ways and Means Committee has a copy of Trump’s tax returns, there is nothing that stops a committee member from reading them aloud, line by line, on C-SPAN: While federal law says that the Ways and Means Committee can consider confidential return information only in closed executive session, the Constitution’s Speech or Debate Clause shields any member of Congress from legal repercussions if she divulges return information during a committee meeting or on the chamber floor.
Last but not least, none of this excuses the Trump Treasury Department from complying with Neal’s request under Section 6103(f). Neal has asked not only for Trump’s returns but also for the IRS work files that will allow the Ways and Means Committee to determine whether audits of Trump’s taxes have been infected by bias. New York doesn’t have the IRS’s internal records, so it can’t supply those. But it can aid the Ways and Means Committee in its important investigation—notwithstanding the Trump administration’s apparent attempt to escape congressional oversight.
All of which is to say that “never”—which is when Mulvaney said Democrats would see Trump’s tax returns—may turn out to be not so long away. Despite formerly being a South Carolina state lawmaker, Mulvaney seems to have forgotten about America’s federalist system. The IRS isn’t the only tax authority with Trump’s filings, and Washington isn’t the only place where this fight may play out. If the battle shifts to Albany, it could turn out to be very brief.