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A Bit of Impeachment-um for Tax Return Quest?…

Anonymous? Maybe, but this DC Courthouse is where the tax return fight is playing out. (via wikipedia)

When Nancy Pelosi, the Speaker of the US House of Representative formally announced the opening of an impeachment inquiry, she described team effort of sorts. While articles of impeachment will ultimately be drawn up in the Judiciary Committee, the many other committees investigating Donald Trump would continue their probes and report back. Among those looking into various dimensions of Trump is Springfield Congressman and Chair of Ways & Means, Richard Neal.

After a whistleblower revealed details of Trump’s call with Ukrainian President Volodymyr Zelensky, the impeachment posture of the Democratic House leadership changed. The brazenness and clearness of Trump’s request that Zelensky investigate former Vice-President Joe Biden, on spurious grounds, goaded Democrats into action.

Neal had requested Trump’s taxes pursuant to a law that clearly vested him with the authority to do so. The Trump administration has resisted and Neal’s Committee has sued for enforcement. By being deputized into the impeachment probe, the Trump tax return quest could get a shot in the arm. How is not yet clear, though.

A spokesperson for the Ways & Means Committee did not return a request for comment about whether or how impeachment changes the pursuit of the tax returns.

For now, the House Permanent Select Committee on Intelligence, chaired by California Rep Adam Schiff, is spearheading the investigation.

Neal’s lawsuit followed Treasury Secretary Steve Mnuchin and Internal Revenue Service Commission Charles Rettig’s refusal to comply with Neal’s request for a batch of Trump’s tax returns and those of his companies.

The Ways & Means Chair—and Senate counterpart—have a right to the returns under a law written after the Teapot Dome scandal. The law now exists as an explicit exception to tax return privacy laws, codified under Section 6103(f) of the Internal Revenue Code.

Richard Neal

Done asking nicely? (via YouTube/Ways & Means Cmte)

In July, Neal’s committee filed suit to compel Treasury’s compliance. However, his critics, including his 2020 primary challenger, Holyoke Mayor Alex Morse, have accused Neal of dragging his feet on the issue. Some detractors even doubt his interest in the fight.

Neal told reporters the day after the 2018 election that he would seek the returns. Since taking the Ways & Means gavel, he has defended his course as following House Counsel’s advice. However, the case has been slow-going.

House lawyers had sought a quick, favorable ruling, but US District Judge Trevor McFadden, a Trump appointee, declined to deliver that. Essentially, he ruled other matters should be litigated first.

Among them is Trump’s motion to dismiss. Much of that argument is premised on the idea that congressional investigatory power doesn’t exist. If it does, Trump’s claim continues, then Neal’s stated legislative purpose—oversight of mandatory presidential tax audits—is a pretext for obtaining and exposing the real estate tycoon and provocateur’s 1040s.

On Monday, Trump’s side filed their reply to the Committee’s opposition to a motion to dismiss. The arguments to dismiss also include claims that the Committee has not exhausted its obligation to accommodate the executive branch.

The claim that Congress has no oversight authority is radical. Yet, it matches the strategy Trump has deployed to block other subpoenas, especially those related to his finances.

Trevor McFadden

US District Court Judge Trevor McFadden. (via wikipedia)

Despite McFadden’s denial of the Committee’s request for a quick ruling, the court’s pace is not exactly glacial. A ruling on Trump’s motion to dismiss should come in a few weeks. Both sides have filed their initial arguments. Former House counsel and constitutional law experts have filed amicus briefs, almost entirely in favor of the Committee’s position—and Congressional oversight generally.

In his August 29 decision, McFadden also suggested he may revisit the Committee’s demand depending on how the Court of Appeals for the DC Circuit rules on other congressional subpoenas.

Still, any final ruling of McFadden’s will almost certainly be appealed. That and the potential for Supreme Court litigation has dimmed hopes of obtaining Trump’s taxes before the 2020 election.

Ultimately the problem may not be the Supremes. While not unthinkable, the Court would be reversing two centuries of jurisprudence to find for Trump. Even taking a case like this based on such settled law could damage the Court’s reputation.

A more likely source of delay may be in the DC Circuit itself. A panel of three judges makes most rulings, but the whole court can sit to make a final determination if the panel’s ruling was inconsistent with previous jurisprudence. Democratic presidents have appointed the current majority on the full DC Circuit.

For his part, Neal is confident in the case. The congressman took questions at an event in Springfield and, according to audio from Northeastern Public Radio, spoke about the case.

By his own admission, he was guarded about the case because it was active. Still, he was optimistic about the outcome while assuring things were moving forward “methodically, carefully and judicially.”

Still, some forces could buffet the case before it reaches conclusion. The first is the impeachment itself, though Neal was noncommittal about how his legal case could change, if at all.

Ways & Means trade

The House Ways & Means Committee Room. (WMassP&I)

Ways & Means also has a whistleblower of its own. First revealed in court filings over the summer, the individual claims there has been some funny business surrounding the mandatory audit of Trump and Vice-President Mike Pence.

Neal has come under pressure to release the whistleblower’s statement. He said he is consulting with House counsel about how to proceed and seemed inclined to follow their recommendation. The House’s lawyers, which advise Ways & Means, “are proceeding on the basis of trying to interview the individual,” Neal said.

If that’s the case, it may be that Neal and House lawyers only know whatever information the whistleblower initially gave them. Attorneys may want to know more and vet the source before publicizing the claims.