26 USC 6103(f) and Trump's Tax Returns

“The tragic paradox of the electoral route to authoritarianism is that democracy’s assassins use the very institutions of democracy—gradually, subtly, and even legally—to kill it. . . . . One of the great ironies of how democracies die is that the very defense of democracy is often used as a pretext for its subversion” How Democracies Die, Steven Levitsky and Daniel Ziblatt, 2018

By now it is obvious that President Trump is making a run at establishing a full-blown corrupt, anti-democratic tyranny. His past statements make it clear that he wants to be a dictator for life. His recent statements make it clear that he will resist any further attempts by congress to exert its oversight authority by conducting any further investigations related to him. What was the republican party is now the Trump Tyranny Party (TTP), so there is essentially no possibility they oppose Trump's plan. For practical purposes, the TTP is just as corrupt, anti-democratic and authoritarian as Trump. The last stand of democracy just might come from congressional democrats exerting their congressional oversight authority. The recent assertion that Trump can fire any prosecutor he believes is investigating false allegations against him is tyrant rhetoric. There is nothing democratic about it.

Democratic norms that had been in place since the end of World War 2 are mostly gone now. The stunning weaknesses of democracy in the face of a committed tyrant are obvious. The TPP was fully complicit in their fall. The 2020 elections could turn out to be a sham if Trump gains tyrant power before those elections. The odds of that outcome are low, but now significantly higher than they have been in a very long time. claims that 'we have been through this before and we'll be OK' ring hollow. America has never been through this before. There has never been a time when (1) American society was this divided, (2) one party in power was fully in accord with the tyrant president, (3) America's enemies were relentlessly attacking society and democracy with endless sophisticated, effective propaganda, and (4) the leader of a hostile foreign power, Vladimir Putin, bribing, blackmailing and/or cajoling a virulently anti-democratic US president to do his bidding in foreign and probably also domestic policy. That combination of circumstances has never existed in US history. Absolutely no one can know that 'we'll be OK'. We just might not turn out OK. we might wind up another kleptocratic police state like Russia wants us to be.

It is possible that House of Representatives demands to see Trump's tax returns will trigger a crisis that leads to the fall of American democracy in the coming months or years. He will resist allowing any member of congress from seeing his returns, presumably because they contain evidence that he is a felon and a traitor. Given those stakes and his obvious authoritarian character, it is logical for Trump reject all congressional oversight authority from now until his last day on Earth.

Congress can demand to see tax returns under 26 USC 6103(f): In the early days, all US taxpayer returns were public. That is still the case in some European countries today. Newspapers routinely published the taxes paid by the wealthy. That amounted to transparency that went away over time. The wealthy have always been able to defend themselves from transparency and they will always try very hard to remain shrouded in secrecy.

After those days, only the president had the power to look at anyone's tax returns. That ended after the 1921-1923 Teapot Dome scandal in Warren Harding’s administration. In the wake of Teapot Dome, congress passed legislation in 1924 that expanded the power to review tax returns to congress. That legislation reclaimed the right of congress to review private tax returns. Just as the legislative branch has the power to tax and spend, it also has the power to review personal tax returns as fully within its rights and oversight obligations.

26 USC 6103(f) is long and detailed but the first part of it reads as follows:

(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.

Other provisions include these:

(5) Disclosure by whistleblower: Any person who otherwise has or had access to any return or return information under this section may disclose such return or return information to a committee referred to in paragraph (1) or any individual authorized to receive or inspect information under paragraph (4)(A) if such person believes such return or return information may relate to possible misconduct, maladministration, or taxpayer abuse.

(h) Disclosure to certain Federal officers and employees for purposes of tax administration, etc. (h) Disclosure to certain Federal officers and employees for purposes of tax administration, etc. (1)Department of the Treasury Returns and return information shall, without written request, be open to inspection by or disclosure to officers and employees of the Department of the Treasury whose official duties require such inspection or disclosure for tax administration purposes.

(2)Department of Justice In a matter involving tax administration, a return or return information shall be open to inspection by or disclosure to officers and employees of the Department of Justice (including United States attorneys) personally and directly engaged in, and solely for their use in, any proceeding before a Federal grand jury or preparation for any proceeding (or investigation which may result in such a proceeding) before a Federal grand jury or any Federal or State court, but only if— (A) the taxpayer is or may be a party to the proceeding, or the proceeding arose out of, or in connection with, determining the taxpayer’s civil or criminal liability, or the collection of such civil liability in respect of any tax imposed under this title; (B) the treatment of an item reflected on such return is or may be related to the resolution of an issue in the proceeding or investigation; or (C) such return or return information relates or may relate to a transactional relationship between a person who is or may be a party to the proceeding and the taxpayer which affects, or may affect, the resolution of an issue in such proceeding or investigation.

At least some knowledgeable people believe that congress has legitimate power to ask for Trump's tax returns, e.g., former Treasury Secretary Lawrence Summers and some (not all) legal scholars.

Trump's counterattack and the fallout: Trump is clear that he will resist all further inquiries into him and his administration. He will attack the law allowing congress to see his tax returns as unconstitutional, not applicable to a sitting president, not a matter of legitimate congressional inquiry, and/or whatever other defense Trump's team of attorneys will devise. Given the fact that Trump has nominated anti-democratic authoritarian federal judges to the federal bench, with Senate TTP consent, it is likely that the Supreme Court will find that one or more of Trump's attacks on 26 USC 6103(f) to be persuasive. That will allow Trump to keep his crimes and treason shrouded in secrecy. On the propaganda front, Trump will be able to employ the powerful tool the white collar criminal always uses to defend himself, plausible deniability, to its maximum extent.

That will lead to the typical response in current polarized politics. Trump supporters will see total, absolute vindication of Trump. They can go back to chants of Lock Her Up! in their enthusiastic never-ending pursuit of Hillary and her alleged crimes. Trump opponents will see the grave threat to democracy and the rule of law. Another group, maybe 4-10%, will be undecided, confused and/or apathetic. How that social stew will play out is unknowable. Maybe there will be violence and police state repression of the free press and public political protest. More likely, the remaining pro-democracy obstacles fall to the tyrant and the TTP as Levitsky and Ziblatt described in 2108.