The information itself amounts to a rehash of Donald Trump’s tax issues. The precedent it sets will have a much more substantial impact — as will the debate over whether Democrats violated the law in releasing the data.
The Wall Street Journal reports on the IRS data released by the House Ways and Means Committee, which shows — as everyone already knows — that Trump used previous tax losses to avoid paying taxes for several years:
The committee released reports and some documents that revealed details about Mr. Trump’s tax returns and audits on Tuesday, showing that he and his wife, Melania Trump, reported negative adjusted gross income in four of the six years from 2015 through 2020. The Trumps paid some form of federal taxes every year, but reported income-tax liability of $750 or less in three of the six years. A full set of tax documents is expected to become public in subsequent days.
The Internal Revenue Service hasn’t completed the Trumps’ audits for any of those years, and Democrats contended that the agency was too slow and timid in how it handled the complex, sensitive tax returns of Mr. Trump, particularly during his presidency.
The committee used a provision of the tax code that lets lawmakers on the tax-writing panel review otherwise confidential documents and make them public in a report.
“I voted to reinforce this critical principle: No person is above the law, not even a president of the United States,” said Rep. Brendan Boyle (D., Pa.), a committee member.
But is the committee itself above the law? Let’s just say that their reading of 26 USC 6103 seems fairly generous about their use of confidential taxpayer data. This statute does allow the chairs of several different congressional committees to access any taxpayer returns, but only while keeping them confidential. Any discussion of that data without the consent of the taxpayer is supposed to be restricted to in camera sessions:
(f)Disclosure to Committees of Congress
(1)Committee on Ways and Means, Committee on Finance, and Joint Committee on Taxation
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.
Needless to say, Trump did not consent to the release of his tax information to the public. He fought for years in court to block the request from Neal even though the statute clearly allowed him access to Trump’s returns, on the basis that Neal and committee didn’t have any legitimate legislative interest in them but planned to use them for partisan political attacks. The courts rightly ruled against Trump on the basis of the statute and their claims to have legitimate legislative interest in the data.
It’s clear that Neal and the committee misrepresented that interest. They are instead using the data to demand more audits of Trump, not to craft new legislative proposals. Furthermore, they could have simply reported on the lack of required presidential audits without releasing any of the confidential information on the returns if this interest was legitimately legislative in oversight terms. This is clearly being used to embarrass Trump (good luck with that) and to damage him politically.
And while Neal and Democrats claim that 6103 gives them permission to release this information publicly, there’s no language in this statute that explicitly allows for such publication. Every grant of access in the statute contains the same language — that the taxpayer has to consent to publication of their confidential return data. Otherwise, the data has to remain confidential and revealed only in closed-door session to other committee members.
Return data can be handed to law enforcement agencies for prosecution in such cases under 6103. Had Neal and his committee found evidence of crimes, they could have referred Trump to Treasury or the DoJ for a criminal probe. They pointedly did not do so; instead, they just started releasing his confidential information for political purposes.
By the way, this is what they found in particular, which again is pretty much what we knew all along:
In the six-year period covered by the returns, the Trumps’ adjusted gross income totaled negative $53.2 million and their total federal tax liability was $4.4 million, the report said.
The Trumps reported positive adjusted gross income in only two of those six years — $24.4 million in 2018 and $4.4 million in 2019, according to the Journal.
The Trumps paid roughly $1 million in taxes in 2018 and $133,445 in 2019, according to an analysis by the New York Times.
In 2020, as the coronavirus pandemic raged across the country, the Trumps reported a loss of $4.8 million and paid $0 in federal taxes.
That’s how capital gains and losses work. Nothing in these releases show that the Trumps broke the law. If it did, you can bet that Neal et al would have trumpeted that from the rafters and made a very public referral to the DoJ.
People can argue that Trump’s refusal to follow presidential-candidate tradition and release his tax returns created this situation. Trump promised to do so and reneged, opening up the argument that he was hiding something nefarious. However, that was a political question for voters to make, not for the opposing party to punish by violating the confidentiality of the tax-reporting process. If Neal et al didn’t quite violate the letter of the law — and that still seems like an open question — they certainly violated its spirit and intent.
That sets a very dangerous precedent, and it won’t be limited to presidential politics. The next target of a future Ways and Means Committee may be a big-time political donor or activist that an opposing party wants to discredit. It might be a reporter who’s digging into the donors of the leadership caste in control at the moment. It could be me, or it could be you, or it could be anyone. Section 6103 didn’t exist to endorse public revelation of private taxpayer data — it exists to limit it only to the most necessary cases, and then only under seal, precisely to prevent this kind of political weaponization.
In politics, precedents set are precedents followed. It will be unfortunate when it happens, but don’t think for a moment that this won’t happen again, and again, and again.
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