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Will John Roberts Let Trump Hide His Tax Returns Forever?

The president is building a constitutional case to keep the documents out of Congress' hands.

Doug Mills/The New York Times via AP, Pool

President Donald Trump really doesn’t want you to know what’s in his tax returns. During the 2016 campaign, he broke with 40 years of tradition by refusing to make them public. (He insisted they were undergoing a routine audit, which doesn’t mean they can’t be released.) All we know for sure comes from a handful of pages from his 1995 and 2005 tax returns, which raised more questions than they answered. A blockbuster New York Times investigation last fall into Trump’s “tax dodges” suggested his returns could show hundreds of millions of dollars in misclassified income.

But the more Trump hides his returns, the greater the public’s curiosity—and the greater his political opponents’ drive—to see them. Richard Neal, the chairman of the House Ways and Means Committee, formally requested Trump’s tax returns from 2013 to 2018 from the IRS last week. It’s unclear whether the Treasury or the IRS will comply. Mick Mulvaney, the acting White House chief of staff, described the committee’s request as a “political hit job” and said that the president would “never” turn over his tax returns. Instead, the White House appears to be gearing up for a long legal fight. In a four-page letter sent last week, Trump lawyer William S. Consovoy told the Treasury Department’s top lawyer that Congress “cannot legally request—and the IRS cannot legally divulge—this information.”

Here, Trump and his legal team are returning to a familiar legal strategy, one they developed during the 18-month clash over his Muslim travel ban: invoke executive powers in unprecedented or extraordinary ways, use the inevitable defeats in the lower courts to rally his base, and hope that the Supreme Court ultimately sides with him on the merits. It’s worked well for him so far. The only question is whether Chief Justice John Roberts and his colleagues are willing to stomach Trump’s insulting assumption that they will always have his back.

Consovoy’s letter makes a constitutional case for protecting Trump’s returns, drawing from Supreme Court decisions that limited Congress’s power to conduct investigations. In the 1880 case Kilbourn v. Thompson, the Supreme Court blocked the House’s demand for documents related to a private real-estate transaction in D.C. because the dispute was a judicial matter, not a legislative one. And in the 1957 case Watkins v. United States, the justices ruled against the infamous House Un-American Activities Committee when it tried to force a labor organizer to name former Communist Party members without sufficient justification.

Those cases both dealt limits to Congress’ power to subpoena private individuals. In those cases, the court held that there is “no congressional power to expose for the sake of exposure.” But this isn’t exactly analogous to Trump’s situation. He’s the president of the United States, not an ordinary civilian. Congress’ request is directed at the Treasury and the IRS, not him personally. And black-letter law allows congressional committees that draft tax-related laws to acquire any individual’s returns, so long as they keep those returns secret. The statute is clear and unequivocal:

Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

Note that the provision does not require the chairman to provide a justification for the written request. Even if it did, Chairman Neal would not have to grasp for one. Trump is the first president to maintain ties with his business empire while in office, raising questions about potential conflicts of interest and whether he is unconstitutionally profiting from foreign sources of income. Special counsel Robert Mueller likely found some answers during his investigation into Russian meddling in the 2016 election. But many questions remain regarding Trump’s deals, both in Moscow and beyond.

In his letter to the Treasury, Consovoy brushed those rationales aside. “[Neal’s] request is a transparent effort by one political party to harass an official from the other party because they dislike his politics and speech,” he wrote. “Chairman Neal wants the President’s tax returns and return information because his party recently gained control of the House, the President is their political opponent, and they want to use the information to damage him politically.”

The framing of Consovoy’s letter mirrors Trump’s rhetoric toward congressional oversight in general. The president has taken to describing scrutiny by House Democrats as “presidential harassment,” an awkward turn of phrase that his lawyer translated into constitutional terms by arguing that Congress’ request infringes on Trump’s constitutional rights. “The First Amendment prohibits the government—including Congress—from harassing political opponents and retaliating against disfavored speech,” Consovoy wrote.

Trump’s lawyer raised separation-of-powers questions as well. “While the committee has jurisdiction over taxes, it has no power to conduct its own examination of individual taxpayers,” Consovoy wrote, implicitly brushing aside the committee’s statutory power to do so. Instead, he argued, that power belonged to the Trump administration alone under the Constitution. “Indeed, the IRS is already conducting its own examination [of Trump’s tax returns],” he argued. “Congressional inquiries made while the decision-making process is ongoing impose the greatest intrusion on the executive branch’s function of executing the law.”

Underscoring the tension, Consovoy’s letter also includes what could reasonably be interpreted as a threat against congressional Democrats. “The potential abuses would not be limited to Congress, as the President has even greater authority than Congress to obtain individuals’ tax returns,” he wrote. “Congressional Democrats would surely balk if the shoe was on the other foot and the President was requesting their tax returns. After all, nearly 90% of them have insisted on keeping their tax returns private, including Speaker Pelosi, Senator Schumer, Representative Nadler, Representative Schiff, and Representative Neal himself.”

Will the Supreme Court agree? Under Roberts’s tenure, the court’s conservative majority has invoked the First Amendment to abolish fair-share union fees, gut federal campaign-finance laws, narrow federal anti-corruption laws, and strike down state laws regulating pro-life “crisis pregnancy centers.” Dissenting from the union-fees case, Justice Elena Kagan wrote that her colleagues were “turning the First Amendment into a sword, and using it against workaday economic and regulatory policy” that they disfavored.

The court’s conservatives also tend to favor the executive branch, but not always. The Supreme Court signed off on the final version of the Muslim ban last summer, with a 5-4 decision that gave broad deference to Trump’s national-security claims. But that doesn’t necessarily mean his separation-of-powers claims would prevail, either. The court unanimously ruled against President Barack Obama in 2014 when he tried to bypass the Senate confirmation process with a slate of recess appointments. Last December, Roberts also sided with the court’s four liberals to block Trump’s asylum ban from going into effect while legal challenges proceed through the courts.

The asylum-ban order came one month after the president had publicly criticized a lower-court judge in the case as an “Obama judge,” prompting a rare rebuke by the chief justice himself. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement shortly before Thanksgiving. “That independent judiciary is something we should all be thankful for.” It was a good retort to Trump’s apparent perception of the judiciary as an ideological rubber stamp. The tax-returns standoff gives the court yet another opportunity to prove him wrong.