an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Does New York State Have a Copy of President Trump’s Federal Returns?
There has been a lot of talk about the new role state attorneys general have been taking on as a check on federal overreach. The Virginia and Washington AGs, for example, have brought important lawsuits to halt President Trump’s immigration executive order. Then there is Jed Shugerman’s creative idea that states bring quo warranto actions to investigate possible by Trump corporation activities that might result in violations of the Emoluments Clause. Dahlia Lithwick has written up a nice explanation of Jed’s idea.
There is something else state attorneys general might do. It is now absolutely clear that the President will not release his federal tax returns.
Any state with a copy of those returns could choose to share them with Congress.
Section 6103(f)(1) of the Tax Code gives House Ways and Means Committee, the Senate Finance Committee, and the Joint Committee on Taxation the power to request individual returns from the IRS. Representative Bill Pascrell is a member of the House Ways and Means Committee. On February 1, he sent a letter to the Chairman, Republican Kevin Brady, requesting that that the Committee obtain from the IRS President Trump’s returns. Last week Brady rebuffed Pascrell.
But there is another option. Since 1998, another subsection of section 6103 has given whistleblowers permission to share federal returns with Congress. Section 6103(f)(5) provides:
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 [the House Ways and Means Committee, the Senate Finance Committee, and the Joint Committee on Taxation] . . . if such person believes such return or return information may relate to possible misconduct, maladministration, or taxpayer abuse.
Persons who have access under section 6103 include IRS and Treasury officials. They also include state tax officials. Subsection (d)(1) provides that state tax authorities may obtain federal returns to assist in the administration of state tax laws.
As far as I can tell, courts have yet to construe section 6103’s whistleblower provision. A tax scholar has suggested to me in conversation that “misconduct, maladministration, or taxpayer abuse” might have been intended to refer only to misdeeds by the IRS, and not abuses by individual taxpayers themselves. But other tax scholars I’ve spoken to have observed that is not what the statute says. On the face of it, the whistleblower provision applies to any misconduct, maladministration, or taxpayer abuse. In the general course of things, the committees with access to the returns do not investigate individual taxpayer misconduct. But when the returns provide evidence of misconduct by a taxpayer who happens also to be a high-ranking federal official, there is a good argument that the whistleblower provision not only applies, but ought to be invoked.
There many ways President Trump’s federal tax returns might “relate to possible misconduct, maladministration, or taxpayer abuse.” Given revelations that Trump campaign aids had multiple contacts with Russian intelligence, for example, evidence of any financial ties between President Trump and Russian banks or other entities would certainly be relevant to possible misconduct. But the Foreign Emoluments Clause makes the case an easy one. President Trump’s businesses receive a myriad of benefits, direct and indirect, from foreign states. Those benefits flow to the owner of the businesses—President Trump. Donald Trump’s tax returns could give us the first clear and complete picture of his financial holdings. That would let us know whether and when he is receiving, without the consent of Congress, emoluments from a foreign state.
I am not suggesting that individual employees of state or federal tax agencies who have access to President Trump’s federal returns should take it upon themselves to send copies to Congress. As discussed above, there are some questions about the purpose and intent of section 6103(f)(5). Even if individual employees are authorized to share the returns with Congress, doing so might result in losing their jobs, or possibly even a federal criminal investigation.
The Commissioner of the New York Department of Taxation and Finance and the New York Attorney General, however, are in very different positions. I do not know whether the New York State Department of Taxation and Finance—or any other state tax office—has a copy of President Trump’s federal tax returns (or federal returns from any corporate entities that he owns, which might also qualify). I would not be surprised if one did. If the IRS has been auditing President Trump’s returns, there is a good chance New York State has been auditing them as well. In the course of any such audit, the New York Department of Taxation and Finance might well have received copies of President Trump’s federal returns. Or the President’s federal returns might have been used in investigating why in recent years he received a New York State tax break for those earning $500,000 a year or less.
If New York State does have copies of the President’s federal returns, and if the New York Commissioner and AG believe those returns “may relate to possible misconduct, maladministration, or taxpayer abuse,” the plain meaning of section 6103(f)(5) authorizes them to forward the returns to one or more congressional committees. Of course the decisions to share the returns with Congress would be more than a legal one. Such an act would have important political repercussions. And it would be another tremor in what seems to be a tectonic shift in the states’ role as checks on the executive branch. But I hope folks in the New York OAG are at least considering this option, and that attorneys general in other states that might have copies of the returns are too.
UPDATE: Bryan Camp and Victor Thuronyi have a post in Forbes online exploring the same idea. Camp and Thuronyi focus on the IRS employees who must have access to the President’s returns if he is truly being audited. Their post includes helpful information on the history of § 6103(f) and penalties for improper disclosure of returns more generally — reasons why I would rather see a state tax commissioner or attorney general forward the returns to the committee. My preferred approach, however, assumes the state is in possession of the returns.
Gregory Klass is Agnes N. Williams Research Professor and Professor of Law at Georgetown University Law Center. You can reach him by e-mail at email@example.com