Donald Trump proclaimed for months on the campaign trail that he could not release his tax returns because they were being audited by the IRS. He’d let everyone see them, he vowed, after the audit. “Absolutely,” he said at one of the presidential debates.
Those secret tax returns—they still have not been released—are the centerpiece of a case being argued Thursday in a Washington, D.C., federal appeals court. A panel of judges will decide whether the Internal Revenue Service can be forced to publicly release Trump’s tax returns through the federal Freedom of Information Act.
The advocacy group Electronic Privacy Information Center brought the suit against the IRS last year and lost in the trial court. The IRS does have the power, in limited circumstances, to release a private taxpayer’s returns. But the judge said neither route—one includes the president himself giving approval—had been established.
“What plaintiff wants in this case is to peer into another person’s income-tax records. Although the court has no reason to doubt EPIC’s assertion that the return information on this particular individual—President Trump—would be of interest to the public, that fact does not give the organization a viable legal case,” Judge James Boasberg of the U.S. District Court for the District of Columbia wrote in his August 2017 ruling.
Trump has repeatedly insisted he has no investments in Russia, the country at the focus of the special counsel’s ongoing election-interference investigation. “I have nothing to do with Russia—no deals, no loans, no nothing!”
Public interest in Trump’s tax returns has only risen since he took office more than a year ago, as Russia-related criminal investigations swirl around him and as several lawsuits present claims the president is profiting unlawfully from the office. Those civil cases, testing the scope of the Constitution’s emoluments clause—an anti-bribery check against the executive—could themselves turn up revelations about Trump’s tax returns.
But until then, there is the Freedom of Information Act case going before the U.S. Court of Appeals for the D.C. Circuit Thursday morning. Judges Karen LeCraft Henderson, Harry Edwards and Patricia Millett will hear the appeal. The case presents a clash between the federal public records law and secrecy provisions of the tax code.
“Wide-ranging concerns about conflicts of interests, unique to this Presidency, could be resolved with the public release of the President’s tax returns,” Electronic Privacy Information Center lawyers argued in their opening brief.
EPIC wants to convince the D.C. Circuit panel that the IRS must process the group’s records request under a provision of the tax laws that involve public disclosure “to correct a misstatement of fact.” The IRS can release tax records on that front, but only with approval of the nonpartisan Joint Committee on Taxation.
Boasberg said the taxation committee, a division of Congress, hasn’t approved the release of Trump’s tax returns. EPIC contends the IRS must initiate communication with the committee, and that step hasn’t yet been undertaken. The group argues approval from the committee starts with the IRS and is “not something in the power of a FOIA requester.”
Justice Department lawyers, representing the IRS, contend the Electronic Privacy Information Center is trying to “use FOIA to make an end-run around the protections conferred upon the taxpayer.” Government lawyers sounded an alarm in the case, arguing that the plaintiffs, if they win, would open a wider door to the release of private tax returns.
“One can imagine all sorts of public figures who might be subject to having their return information made public under such an expansive exception to the confidentiality requirement,” the Justice Department lawyers said in a brief.
There’s at least one person who might cringe at this thought: Charles Rettig, the Trump administration’s pick to lead the IRS. Rettig, a veteran tax lawyer in Beverly Hills, California, came to the then-candidate’s defense in 2016 as pressure mounted for Trump to reveal his tax filings. (Rettig was confirmed as IRS commissioner on Wednesday in a Senate vote 64-33.)
“Would any experienced tax lawyer representing Trump in an IRS audit advise him to publicly release his tax returns during the audit?” Rettig, a former name partner at Hochman, Salkin, Rettig, Toscher & Perez, wrote in a contributed piece at the Forbes site IRS Watch. “Absolutely not.”