Trump Claims Constitution Still Protects His Taxes as Ex-President

The legal battle over House Democrats’ efforts to obtain Donald Trump’s tax returns may turn on whether a former president can still assert constitutional protections against congressional requests.

At a scheduling conference in Washington on Thursday, U.S. District Judge Amit Mehta asked lawyers for Trump and House Democrats to offer their preliminary views on whether a May 2020 Supreme Court ruling that denied tax records to Congress under the Constitution’s separation of powers clause still applied.

Trump lawyer Cameron Norris argued that the Supreme Court ruling still protected Trump’s taxes, and claimed a decision from Richard Nixon’s post-presidency supported that position.

“We of course don’t think it’s going to be very fair or very consistent with the Supreme Court opinion for the House to have all its investigative interests based on the fact that he was president, but not have the standard that applies when he was president,” Norris said.

Heightened Standards

Megan Barbero, a lawyer for the House Democrats, did not directly address the legal question but said the House already has “satisfied even the heightened standards the Supreme Court has set forth for a sitting president.”

Those heightened standards were outlined in a high-court ruling on the suit Trump filed seeking to block a House subpoena issued to his accounting firm, Mazars USA. The justices said in a 7-2 decision that congressional subpoenas seeking the president’s personal information must be “no broader than reasonably necessary” and ordered lower courts to determine whether the House’s request met that standard.

Mehta on Thursday offered no indication of his views on whether that standard applies to former presidents. But he made it clear that legal question would be at the heart of the next round of litigation. “That’s a nice preview of what’s to come,” the judge said.

Andy Grewal, a tax law professor at the University of Iowa not involved in the case, said he thought Trump’s position was a reasonable one.

“If all the protections just disappear once the president leaves office, that would affect how the president handles the issue while in office,” said Grewal, though he added that it was “something reasonable people can disagree on.”

The Mazars dispute is only one strand of a complex series of legal battles centered on Trump’s tax information, which he insisted on keeping secret throughout his presidency.

House Democrats are separately seeking Trump’s tax returns under a law that allows congressional tax committees to examine any taxpayer’s filings. The Treasury Department under Trump refused to turn over the requested six years of Trump’s personal and business tax returns. The Biden administration said on Wednesday it was still weighing whether to comply. A judge set a March 31 deadline for the government to reach a decision.

Manhattan District Attorney Cyrus Vance has obtained Trump’s tax records from Mazars as part of a criminal investigation into the former president’s business dealings. It’s unclear, however, whether Vance will make those documents public.

The case is Trump et al v. Committee on Oversight and Reform of the U.S. House of Representatives et al, 19-cv-01136, U.S. District Court, District of Columbia (Washington).

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