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Trump is literally asking courts to hold that the Constitution doesn’t apply to liberals

Treasury Secretary Steven Mnuchin formally denied a request by House Ways and Means Chair Richard Neal on Monday — Neal asked the Treasury Department to turn over several years of President Trump’s tax forms.

As a matter of law, this wasn’t so much a request as it was a mandatory demand, and Mnuchin’s response to Neal places the secretary in direct violation of the law. While the tax code provides that an individual’s tax forms generally should be kept confidential, one provision of that code provides that the Treasury Secretary “shall furnish” the Ways and Means Committee “with any return or return information specified in” a written request from the committee’s chair.

The law does provide some procedural protection for Trump — his return “shall be furnished to such committee only when sitting in closed executive session” — but the law provides no grounds whatsoever permitting Mnuchin to deny the request.

Rather than comply with the law, however, the Trump administration fell back on familiar tactics: accuse Neal of improper motives, concoct a constitutional argument that is directly at odds with longstanding precedent, and then hope that a partisan Supreme Court will ignore those precedents and protect their political ally in the White House.

In his letter to Neal, Mnuchin claims that “Congressional information demands must reasonably serve a legitimate legislative purpose” — and thus any demand which does not serve such a purpose is unconstitutional. This statement is mostly true, but it is incomplete. And it doesn’t help Trump’s case. At all.

House Democrats understandably are pursuing other channels to uncover Trump’s financial information, they also subpoenaed two banks seeking such information. And a lawsuit Trump’s private lawyers filed last week, which seeks to quash those subpoenas, previews many of the legal arguments that his administration is likely to raise against the Ways and Means Committee.

Much of the complaint in Trump v. Deutsche Bank rests on political arguments that will appeal solely to the kind of judges who binge watch Fox News. “The subpoenas were issued to harass President Donald J. Trump,” his lawyers claim in the second sentence of the complaint’s introduction, as part of an effort to “ferret about for any material that might be used to cause him political damage.”

Similarly, Secretary Mnuchin argued in an April 23 letter that the purpose of Chairman Neal’s request for Trump’s tax forms is “exposure of a political opponent’s private tax information.”

There’s something quaint about members of the same political movement that brought us the House Benghazi committee complaining about politically motivated oversight, but even if Team Trump were correct — that is, even if the sole purpose of these information requests is to uncover information about a political foe — Trump still has no legal case.

The reason why is a case that Trump’s lawyers rely on heavily in their Deutsche Bank complaint, Eastland v. United States Servicemen’s Fund, which involved what was almost certainly a harassment campaign by a conservative senator seeking to hound anti-war organizations into insolvency.

The Eastland case involved what a federal appeals court described as “a fundamental constitutional question of grave import to which the Supreme Court has not yet given an explicit answer” — or, at least, did not give an answer until it decided Eastland itself. That fundamental constitutional question was “have the courts of the United States the power to interfere with the subpoena power as exercised by committees of the United States Senate and House of Representatives when the exercise of such power threatens a deprivation of First Amendment rights of freedom of association which can be vindicated in no way other than by court decree?”

Senator James O. Eastland smokes a cigar (CREDIT: Bettmann)

The “Eastland” in this case was Sen. James Eastland, a Mississippi Democrat from the era when Southern Democrats were the ideological heirs to men who committed treason in defense of slavery. Eastland, moreover, defended the Vietnam War with the same single-minded vigor that he opposed civil rights. In a 1972 Senate hearing, the senator warned of “the almost certain probability that a Communist victory” in Vietnam “would be followed by a bloodletting that would rival the worst bloodlettings that have taken place in Communist countries to date.”

So, as chair of the Senate Subcommittee on Internal Security, Eastland subpoenaed financial records from anti-war groups that set up coffee houses where military servicemembers could gather and newspapers that expressed an anti-war viewpoint. As the group targeted by these subpoenas claimed, “both the G.I. coffee houses and newspapers have become the focus of dissent and expressions of opposition within the military toward the war in Vietnam and now Cambodia, and are frequent targets of repressive actions by both civilian and military authorities seeking to silence dissent.”

The likely purpose of these subpoenas was to shut down this anti-war group by strangling its funding. The subpoenas would reveal the group’s donors, and many of these donors would be chilled from making such donations if they knew this information would become public. One witness testified that “approximately a 50 percent curtailment in money” distributed to the coffee houses and newspapers “had occurred during the period following the service of the subpoena.”

And yet, despite this context — despite the fact that a federal appeals court explicitly acknowledged the First Amendment issues at stake in Eastland, and despite the fact that Eastland was almost certainly targeting a political foe — the Supreme Court upheld his subpoenas. Eastland’s actions, according to the Supreme Court, “are protected by the Speech or Debate Clause of the Constitution” and are “therefore immune from judicial interference.”

The holding of Eastland is that “once it is determined that Members are acting within the ‘legitimate legislative sphere’ the Speech or Debate Clause is an absolute bar to interference.”

Indeed, the justices even warned future judges about going “beyond the narrow confines of determining that a committee’s inquiry may fairly be deemed within its province.” Regardless of Eastland’s true motives, the court explained that an “inquiry into the sources of funds used to carry on activities suspected by a subcommittee of Congress to have a potential for undermining the morale of the Armed Forces is within the legitimate legislative sphere.” And that was the end of the court’s own inquiry.

Again, so long as congressional oversight “may fairly be deemed” to fall within Congress’ legitimate functions, the courts must uphold the inquiry. And they must do so even in a case, such as Eastland, where the evidence that a congressional inquiry targeted a political foe is overwhelming.

So that should be the end of Trump’s resistance to both the subpoenas as well as Chairman Neal’s oversight — as there are numerous justifications for these inquiries that “may fairly be deemed” to have a legitimate purpose. Neal’s stated reason is to investigate “the extent to which the IRS audits and enforces the Federal tax laws against a President,” but there are also other legitimate reasons why the House would seek this information.

For one thing, as I’ve previously explained, the House has a legitimate need to know if a president whom it must negotiate with about all legislative matters is engaged in corrupt dealings that may influence what the president asks of Congress.

The president is a key player in the legislative process. He may propose legislation and veto it. As head of the Executive Branch, the president shapes what kind of information Congress receives and much of what they know about how the government is functioning. If the president is secretly motivated by illegal financial dealings — or by a desire to protect his criminal conspirators — that is absolutely a matter of legislative concern that Congress should be aware of in its negotiations with the president.

Similarly, Eastland explains that “the power to investigate is inherent in the power to make laws because ‘[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.’” A similar logic applies to the House’s prosecutorial function.

The Constitution gives the House “the sole power of impeachment.” But just as the House could not “legislate wisely” without information about matters its legislation would impact, it also cannot determine whether a public official has committed impeachable offenses if it cannot investigate officials who are reasonably suspected of criminal behavior. The power to investigate a sitting president is inherent in the power to impeach that president.

Simply put, there is no constitutional argument supporting Trump’s resistance to House oversight. Indeed, the specific argument that this president makes — that inquiries potentially motivated by disdain for a political rival are somehow invalid — was considered and firmly rejected in the Eastland case.

The only justification for ignoring Eastland now is that the rule that applied to a conservative, arch-segregationist defender of the Vietnam war does not apply to a left-leaning Congress. Trump asks the courts to hold that there is one Constitution for liberals and another, better Constitution for conservatives.

That is emphatically not a system of government that our Constitution permits. But it is, sadly, the system of government that our current Supreme Court may create.

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