President Donald Trump’s bet that it’ll take years to resolve a coming court fight over his tax returns could be wrong.
Federal courts are already ruling quickly against Trump in his other attempts to block Congress. The Supreme Court could also be a dead end if the case doesn’t present new legal issues or divide appellate courts. That means there’s a decent chance the White House could lose the fight and be forced to hand over Trump’s tax records before the election.
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“He’s gambling,” said Michael Stern, a former senior counsel in the House of Representatives’ Office of General Counsel. “I don’t think anyone would say that it’s impossible for there to be a final order for him to produce the tax returns by the middle of next year.”
That could potentially be disastrous for Trump and other Republicans by focusing public attention on the long-running mystery of what’s in his returns just as voters are heading to the polls — and would likely leave the GOP wishing Trump had ripped off the tax-return Band-Aid sooner.
It would also be ironic because Trump once criticized former Republican presidential candidate Mitt Romney for releasing his own tax returns too close to the 2012 elections.
The question comes as Trump has quickly lost a pair of court decisions dealing with other subpoenas issued by Democrats. On Wednesday, a federal court sided with the House Financial Services and Intelligence committees in their bid for Trump’s financial records from Deutsche Bank and Capital One. That followed a ruling Monday by another court in favor of the House Oversight Committee, which is seeking Trump records held by an accounting firm.
Trump is appealing Monday’s decision and plans to appeal the second one, as well.
When it comes to Trump’s tax returns, the administration has an obvious incentive to try to run out the clock. Not only might Republicans retake the House in next year’s elections, allowing them to quash a suit. Trump will also either be in his second term, when it will matter less, or he will have been voted out of office.
House Democrats are now preparing to go to court to enforce a subpoena for the records — six years’ worth of Trump’s personal returns and from some of his businesses.
They are seeking Trump’s filings under an arcane law allowing the heads of Congress’s tax committees to examine anyone’s tax records. Democrats intend to release at least some of Trump’s tax information to the public. Treasury Secretary Steven Mnuchin last week rejected Democrats’ subpoena, arguing they don’t have a legitimate reason for seeking the returns.
He said Wednesday the administration would abide by whatever the courts decide. “If the third branch of government opines on Congress’ right, then we would obviously supply the documents,” he told a House panel.
Though many expect the case to be tied up in the legal system beyond next November, that isn’t a foregone conclusion. While Trump, Newt Gingrich and others have predicted the case will be settled by the Supreme Court, some experts are skeptical, saying it doesn’t look like the sort of case the court would take up.
“I just don’t think the issues are novel enough,” said Kerry Kircher, who was the House’s general counsel from 2011 to 2016 and deputy counsel from 1996 to 2010. “The Supreme Court picks and chooses the cases that it takes and there are certain standards by which it judges the cases that it takes, including whether there is a conflict between the circuits on an issue or whether this is an issue of overriding national importance.”
“It wouldn’t surprise me to see this one run out of steam after the court of appeals considers it,” he said.
If the Supreme Court didn’t take the case, that would just leave the circuit court of appeals and the federal court, which may not need more than a year to decide.
The case is not particularly complicated, said Kircher, and the fact that the administration is fighting all of the Democrats’ subpoenas may push judges to act quickly.
“They read the newspapers,” he said. “My guess is many of the courts will try to move these cases along fairly quickly, recognizing that we’re in extraordinary times and the United States of America needs to get resolution of these issues fairly promptly.”
When the House sued the George W. Bush administration to both force his former lawyer, Harriet Miers, to testify before Congress and his chief of staff, Josh Bolton, to hand over documents in the firing of numerous U.S. attorneys, the courts wrapped up that case in around six months.
To be sure, there’s a good chance Democrats won’t lay hands on Trump’s returns before November 2020.
The administration could win the case outright. Short of that, it would have ways of stalling the proceedings, and judges could want to take their time with such a politically charged case. When Republicans sued the Obama administration over the “Fast and Furious” investigation, the case languished in the courts for years, though that case — unlike the tax return issue — required litigants to sort through a mountain of paper.
The Supreme Court could also decide to take up the tax returns case, and there have been signs it is interested in issues surrounding Congress suing the executive branch like those raised in the case, said Andy Grewal, a law professor at the University of Iowa.
“We can read the tea leaves and say the Supreme Court is interested in that issue,” he said.
Republicans say they intend to win the case.
“Our only priority is protecting American taxpayers from [Democrats] weaponizing the tax code — that is our No. 1, No.2 and No.3 goals,” said Rep. Kevin Brady, the ranking Republican on the Ways and Means committee. “At the end of the day, the courts, I believe, will rule with us.”
If Trump were forced to hand over the returns just as voters are getting ready to head to the polls, it would be reminiscent of what happened to Romney.
He too resisted releasing his returns during his 2012 presidential bid, before relenting in September of that year. Trump later blamed Romney’s loss on his decision to wait so long, saying he should have put his tax information out sooner. That was a bigger mistake than Romney’s criticism of the then-47 percent of Americans who didn’t pay income taxes, Trump said.
“He waited until September to give them, just before the election — they made him look so bad, it was so unfair,” Trump told ABC in July 2016. “I actually think he didn’t lose because of the 47 percent — I think he lost because of a couple of really minor items in a tax return where he did nothing wrong.”