Between 1803 and 2018, the United States Supreme Court ruled 172 federal laws passed by Congress are unconstitutional. House Speaker Nancy Pelosi (D-Calif.) and Ways and Means Committee Chairman Rep. Richard Neal (D-Mass.), in their effort to demonize President Trump, may inadvertently add a law written in 1924 to this list of doomed legislation. Absent a smoking gun from the Mueller report, the Trump resistance sees the next opportunity to demonize Trump via his tax returns.
It is entirely plausible that IRC 26 U.S.C. § 6103(f), originally passed in response to the Teapot Dome Scandal, (a bribery scandal involving oil leases on federal land during the Harding administration) which states that the Treasury “shall furnish” the [Ways and Means] Committee with “any” requested tax return information, will meet the same fate.
The Fourth Amendment to the Constitution states unequivocally, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Treasury Secretary Mnuchin’s May 6thletter to both the House Ways and Means Committee’s subpoena and lawsuit for the Treasury Department to furnish President Trump’s tax returns, stated that the committee had no “legislative purpose” for requesting Trump’s tax returns, and, therefore, rejected the request. He’s right. They don’t. However, nothing in Section 6103(f) requires any legislative purpose, and therein lies the problem.
There simply is no warrant and no probable cause for anyone in Congress to view these returns. Certainly, our Founders never intended political parties to go on these types of fishing expeditions but, then again, they never envisioned direct federal taxes, the Internal Revenue Service or an income tax where this type of nefarious political behavior can thrive.
Paradoxically, House General Counsel Douglas N. Letter, who is the lead counsel on this House lawsuit, was part of Attorney General Eric Holder’s office who routinely thumbed their noses at congressional subpoena requests relating to the Fast and Furious scandal (alleged U.S. government diversion of firearms to Mexican cartels during the Obama administration that led to congressional oversight investigations), ultimately leading to a Contempt of Congress charge to Holder. Letter is certainly not a person entitled to the moral high ground relating to the executive branch’s response to congressional oversight.
This is the same attorney who left the Justice Department under Trump in 2018 and has fought anti-sanctuary city laws and argued against the census citizen question. Although, the administration should be concerned over a Supreme Court showdown, as Chief Justice John Roberts and Justice Neil Gorsuch were both invited and attended Letter’s retirement party from the Justice Department.
Nightly cable news channels may lead Americans to believe that President Trump is violating the law by not releasing his personal tax returns voluntarily. Nothing in U.S. law, however, requires this disclosure.
Richard Nixon was the first to disclose his tax returns, ultimately due to a scandal involving the donation of his vice-presidential papers. Nixon claimed a hefty deduction for the donation but had to backdate the date of the gift to qualify—a bit of legerdemain that enabled him to pay in taxes about what a lower middle-class taxpayer would.
Reporter Jack White of the Providence Journal won the Pulitzer Prize for breaking the story, which was leaked to him by an IRS employee in 1973. The IRS leaker was never identified or prosecuted.
I fully expect Trump’s tax returns to be leaked by some low-level ideologue at the IRS at some point—and whoever does it will be revered as a hero by fanatical anti-Trumpsters in the media.
And make no mistake about it: A 77,000-plus page tax code creates a target-rich environment. Trump’s real estate holdings, multiple entities, foreign holdings and trusts make his voluminous returns ripe for unwarranted criticisms. Trump’s opponents will exploit our confusing tax code to make perfectly legal activity seem criminal.
They will argue that Trump is too rich, or he isn’t rich enough. His use of deductions and legal tax shelters will get portrayed as “tax dodging.” His charitable contributions will be scrutinized.
If he has been made to pay penalties for underreporting or has paid the IRS interest at any point (even before his presidency), he will be deemed a criminal, even though most of us who have had complex tax returns typically face additional taxes due or penalties, despite employing highly skilled tax professionals.
The latest data available from the IRS showed 2.2 million tax return errors in 2015 without an audit involved. Several years ago, Money Magazine gave a rather mundane sample family tax return to complete to 45 tax professionals and received 45 different tax outcomes, some as much as 160 percent different in the amount of taxes due or refunds to be received. It is literally impossible for anyone with complex tax returns to absolutely know beyond a shadow of a doubt if our tax professional did it right.
Absent a criminal warrant with probable cause, the anti-Trump Resistance has no legal claim to view his tax returns. This battle will surely end up in the Supreme Court, where it belongs and where IRC 6103(f) should be ruled unconstitutional. It is completely President Trump’s prerogative not to divulge his tax returns, and he alone can calculate the political risks—if any. The U.S. Constitution guarantees him that right.
David Thomas Roberts(@TexasAuthor)is a serial entrepreneur, inventor, public speaker, and author who found himself battling the IRS as he—along with a long list of conservatives—was targeted year after year with audits. Robert G. Bernhoft, America’s #1 Tax Attorney claimed Roberts is, “America’s Most Audited Man.” Roberts’ new book,“The Death of Liberty: The Socialist Destruction of America’s Freedoms Using the Income Tax”was released May 22, 2019.