Robert F. Jakubowicz: Law favors Neal: Will it matter to courts?


PITTSFIELD — There is more to the request for the president's tax returns by Rep. Richard Neal, the chairman of the Ways and Means Committee of the House of Representatives, than merely obtaining that information. The president's reaction to it is another example of his disregard for the rule of law.

The Constitution imposes a duty on a president "to take care that the laws be faithfully executed." The tax law in question regarding the president is a section in the federal tax code that simply and clearly states: "Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives the Secretary (of the Treasury) shall furnish such Committee with any return or return information specified in such request " Neal complied with this law and awaits the requested tax information.

So far, instead of taking care that the Internal Revenue Service (IRS) would faithfully execute that simple law, the president hired a personal lawyer, William Consovoy, to represent him in this matter. Consovoy almost immediately began making a case in the media of why complying with this request would set a "dangerous" precedent. In fact it does not.

Congress adopted this section in 1924 because it encountered difficulty from the Harding administration in obtaining tax information during its investigation of the Teapot Dome scandal. This is a good precedent to enable Congress to use an effective investigative tool in its duty of executive branch oversight.

Consovoy also has asserted that Congress has no legislative reason to request the tax information. In fact, the request for the tax information by Rep. Neal sets forth a legitimate reason under the committee's responsibility in overseeing the executive branch, including the IRS, to make sure the IRS is enforcing the law fairly regarding presidents. And Consovoy has added red meat to his argument for the president's supporter by contending that Rep. Neal's request is just harassment of the president.

None of this is a valid legal argument why this section of the law should not apply to a president.

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But more ominous is the statement by the president's Acting Chief of Staff Mick Mulvaney. He said on Fox News that congressional Democrats will not get access to the president's returns because they have no right to demand them. He said the issue has already been litigated by the election of the president. In other words, the president is not subject to comply with such laws because of his election which in effect takes the place of litigating such issues in court. And the president is acting out such a role by putting an exclamation point on these public statements by Consovoy and Mulvaney by announcing that the law was "100 percent" on his side in this matter. Is this the version of the law by his boss, the one that Treasury Secretary Steven Mnuchin says he will follow?

The refusal to turn over the requested tax returns and tax information most likely will result in a court action. And for the president to keep these records secret would require lower court federal judges or the Supreme Court, if it goes that far, to read a lot into this clearly written, simple law in question. The judges would have to make up law to find in effect an unwritten constitutional right to privacy for tax returns. And this would be at odds with what the president and the Senate Republican Majority Leader Mitch McConnell have been doing to the federal judiciary.

McConnell, who has not been able to distinguish himself as the leader of what has been described as the most deliberative legislative body in the world, has been hard at work in a new role with the Trump presidency which will earn him a niche in American history. Ever since his success in blocking former President Obama from filling the vacancy by the death on Antonin Scalia, McConnell has been trying to pack the federal judiciary with conservative judges like Neil Gorsuch and Brett Kavanaugh. McConnell expects that they and their ilk will interpret laws as written and not judicially write things into them.

Trump apparently hopes that these judicial appointees of his will make one exception to read matters into laws to favor him which is something they will have to do to successfully keep his tax records from being released to Congress.

The president continues to act as if he is above the law from declaring non-existing national emergencies to keeping his tax records secret. That the constitutionally designated national executive is not willing to take care that laws are faithfully executed is another good reason against his reelection.

Robert "Frank" Jakubowicz is a regular Eagle contributor.


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