Nicholas Kamm/AFP/Getty Images LAW AND ORDER Democrats Demanded Trump's Tax Returns. Then They Dragged Their Feet. The House has the authority to request anyone's tax documents. But, inexplicably, the leadership has taken it slow.

Daniel Hemel is an assistant professor at the University of Chicago Law School.

Demanding the president’s tax returns “is one of the first things we’d do” when Democrats control the House of Representatives, now-Speaker Nancy Pelosi told her hometown San Francisco Chronicle less than a month before the November 2018 midterm elections swept her party back into power. “[T]hat’s the easiest thing in the world,” she added. Congress is a “co-equal body of government,” and “[w]e have to have the truth.”

But more than two months after Pelosi took the speaker’s gavel, President Donald Trump’s tax returns are still sitting in an IRS file cabinet, and no member of the “co-equal” Congress has had a look. Rep. Bill Pascrell (D-N.J) says his party will issue a formal demand for Trump’s returns in mid- to late March, but the one House Democrat who has the statutory authority to obtain the documents—Ways and Means Committee Chairman Richard Neal (D-Mass.)—insists he still doesn’t “have a timeline” for moving forward on the matter.


Voters who took Pelosi at her word last fall are right to feel frustrated. Obtaining the president’s tax returns was never going to be “the easiest thing in the world,” and it will likely require a legal battle that could go all the way to the Supreme Court. For that reason, it was important for House Democrats to think strategically about how to build the best case. But as weeks turn into months, the Democrats’ plodding progress starts to look less like strategizing and more like foot-dragging.

This much is clear: A 95-year-old federal statute authorizes Neal, as Ways and Means chairman, to obtain any taxpayer’s return from the IRS upon written request. (The law gives the same authority to Neal’s upper-chamber counterpart, the chair of Senate Finance Committee, Iowa Republican Chuck Grassley.) The statutory language is unequivocal: The Treasury secretary, who is in charge of the IRS, “shall furnish” the Ways and Means or Finance Committee “with any return or return information” upon written request from that committee’s head. The committee can then review the returns behind closed doors, though it has the discretion to share what it learns with the full House or Senate.

To be sure, section 6103(f)—like any other—is subject to constitutional limits. So Neal must make sure that his request complies not only with the minimal requirements of the statute, but also with the potentially more onerous strictures of the Constitution. Fortunately for Neal and the House Democrats, the Constitution places only loose constraints on Congress’ information-gathering efforts. The Supreme Court has said the power to conduct investigations is “inherent” in Congress’ constitutional authority to legislate. That “broad” power of inquiry “comprehends probes into departments of the Federal Government to expose corruption, inefficiency, or waste.”

None of this is to suggest that Congress’ investigative power is boundless. As the Supreme Court has recognized, Congress can’t conduct an inquiry “solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated.” A House or Senate committee must be prepared to explain why its investigation furthers “a legitimate task of the Congress”—such as crafting legislation or conducting oversight.

A request by the Ways and Means Committee for the president’s tax returns would easily fall within these wide parameters. For one thing, the panel exercises oversight authority over the IRS, which is responsible for auditing the president’s returns. The IRS is also part of the executive branch, which the president heads. This raises a rather obvious concern that the IRS might afford more favorable treatment to the president than to other taxpayers. Every president since Jimmy Carter has sought to assuage this concern by exposing his own returns to public scrutiny. Trump of course hasn’t, and so the Ways and Means Committee has a reason—indeed, an obligation—to check up on whether the IRS is treating its ultimate boss on the same terms that it deals with other taxpayers.

The Ways and Means Committee is also responsible for legislating on issues of taxation, tariffs and trade. It often receives recommendations from the executive branch and must decide how to act in response. Past presidents, by releasing their returns, have revealed information about how various tax and trade policies affect them personally—thereby allowing the Ways and Means Committee (and the general public) to identify areas in which conflicts of interest might color the president’s advice. Again, Trump hasn’t—hence giving Neal an additional legitimate reason for requesting those returns from the IRS.

Trump’s predecessors have also relinquished control over their business interests upon entering the White House. Jimmy Carter famously put his peanut farm into a blind trust managed by an independent trustee. By contrast, Trump—whose complex web of business interests includes more than 500 separate entities—has handed control of his empire to his two oldest sons in an arrangement that is anything but blind: Eric Trump says he will continue to give his father quarterly updates on business matters. That makes it all the more imperative for the Ways and Means chair to seek not only the returns that Trump has filed personally, but also those filed by the businesses over which he continues to exercise de facto control. Those returns—and the IRS work files from audits of Trump-related businesses—will allow Ways and Means members to evaluate whether Trump has been the beneficiary of IRS bias or whether financial conflicts of interest color the tax policies that his administration has advanced.

The Ways and Means Committee’s case is strengthened by the fact that Trump has engaged in questionable tax practices in the past—including, according to the New York Times, “instances of outright fraud.” But the argument for putting the president’s tax returns under scrutiny does not depend on whether the Oval Office occupant has a history of tax chicanery. Ordinary Americans who dutifully pay their own taxes are justified in seeking assurance that taxes are not just “for the little people,” as another New York real estate magnate, the late Leona Helmsley, once said. Public confidence in—and compliance with—the tax laws is bolstered when we receive confirmation that our leaders are paying their share too.

This doesn’t exhaust the list of legitimate reasons why the Ways and Means chair can request the president’s returns. But for constitutional purposes, it more than suffices. If Treasury Secretary Steven Mnuchin were to refuse the chair’s request, the House could respond with a subpoena and then—if the secretary still stonewalled—a civil enforcement action in federal district court. (The House also could—in theory—dispatch the sergeant-at-arms to arrest Mnuchin and lock him in a holding cell until he complies with a subpoena for the returns, but neither chamber of Congress has exercised this “inherent contempt” power since 1935.)

The Treasury secretary would hardly have a legal leg to stand on if he refused to hand over the president’s returns. But the legal process still could drag on for months or even years. Indeed, it took nearly 3½ years for a federal district court to resolve a lawsuit brought by the House Oversight Committee and its then-chairman, Republican Darrell Issa, seeking documents from the Obama Justice Department related to the “Fast and Furious” gun-smuggling scandal. Mnuchin, moreover, has every incentive to stall. House Democrats help him out when they run down the clock themselves.

Pelosi isn’t aiding matters by refusing to release her own returns, a fact that the conservative media frequently—and not entirely unfairly—emphasizes. The arguments for why the president should release his returns apply similarly, if not quite as strongly, to the speaker. Congress is, as Pelosi says, “a co-equal branch of government,” and she is that branch’s most powerful member. Congress sets the IRS’ budget, so if we are concerned about the agency showing bias toward the president, shouldn’t we also be concerned about the treatment of powerful lawmakers who pull the agency’s purse strings? And the speaker of the House has as much influence over U.S. tax policy as anyone. Indeed, the December 2017 tax law was more the handiwork of then-Speaker Paul Ryan than of President Trump.

House Democrats inadvertently underscored the point on Friday by passing a bill on a party-line vote that would require all presidential and vice presidential candidates to release their past 10 years of tax returns. The House speaker, of course, comes right after the vice president in the order of succession, and no doubt Pelosi stands a better chance of becoming commander in chief than some of the longest of long shots in the 2020 presidential race. It’s hard to see why we should demand 10 years of tax returns from Democratic dark horses like spiritual teacher Marianne Williamson and entrepreneur Andrew Yang while Pelosi, who sits two heartbeats away from the president, keeps hers under wraps.

To be clear, Pelosi’s refusal to release her own tax returns does not excuse Trump’s failure to do the same. It probably won’t matter in court, though it might be cited by the Trump administration as a reason to question whether the Ways and Means chair’s motives are genuine. (Neal, who wields enormous power over the IRS himself, hasn’t released his returns either, according to a Roll Call survey.) But by declining to hold their own leaders to the same standard that they apply to the president, House Democrats do cede some of the high ground on an issue in which the moral mountaintop should be all theirs.

Putting the president’s tax returns under scrutiny will not resolve all remaining questions about the president’s potential conflicts of interest. If, hypothetically, Trump received an illicit payment from a foreign head of state, he probably wouldn’t reveal that to the IRS. But a thorough review of the president’s filings could ferret out any favoritism he has enjoyed in the audit process or any policy moves by his administration that benefited his businesses. It is, moreover, one of the few areas in which House Democrats can make headway even when the Republican-controlled Senate won’t come to the table. Obtaining the president’s tax returns should have been one of the House Democrats’ signature accomplishments. Instead, the tax return issue may end up being an albatross around their leaders’ necks.