Some of these claims seem to be a serious legal stretch, but that’s no reason not to take them seriously. There are at least two recent examples of novel or surprising legal claims being entertained by the courts, both from the litigation surrounding the Affordable Care Act. When parties first challenged the individual mandate as exceeding Congress’s enumerated powers, many observers laughed, but conservative commentators built up a more plausible case. The individual mandate barely survived, but it would have been on much stronger ground if Congress had been more honest in calling it a tax. Congress, though, had wanted to avoid the political risk of explicitly creating a new tax, and the Supreme Court almost made it pay a steep price for this pretext and this fear of transparency.
A few years later, the Supreme Court reviewed whether the ACA allowed the federal government to create exchanges when it used the word state. Narrow textualists would say no. But the Supreme Court ruled that the purposes of a law were relevant, not just a simple reading of a word. So, too, the federal courts could rule that the word shall is not the end of the story.
Some of these arguments are more persuasive than others. The purpose of the Constitution’s structure, and of other statutes that compel compliance with congressional subpoenas, is to prevent abuses of legislative power. Hypothetically, if a Treasury secretary knows that a request is part of a blackmail scheme or an effort to embarrass a political opponent, then the secretary would have grounds to reject the request, regardless of the word shall.
Quinta Jurecic: All of the impeachable offenses
In the context of 2019, with Trump and the Republicans having dramatically shifted the federal judiciary, is it imaginable that some judges might view Neal’s request as primarily political and partisan? Is it possible that these judges would regard the current explanations from Neal about “oversight” as pretexts hiding a political purpose, and reject the requests? If Trump went to federal court to enjoin New York State from handing over his taxes, could his lawyers argue that the House had failed to specify a legitimate purpose because it offered a pretext and cowered from stating its true purpose?
Voting to authorize an impeachment inquiry would put such questions to rest. Impeachment is explicitly granted as a constitutional power, which would address the separation-of-powers concerns that conservatives have been raising.
The bottom line is that if House Democrats want a strong and legitimate legal argument for getting Trump’s tax returns from Treasury or from New York State—or getting bank records, or getting its other subpoenas to prevail in court—they need to vote to start a formal impeachment inquiry. Then they can specify a deeply legitimate reason for their request: There is a credible question as to whether the president has committed high crimes and misdemeanors. His tax records and the Trump Organization tax records may provide evidence of the motives, or perhaps even of underlying crimes, that led to his campaign’s exploitation of Russian interference in the election, and to his own efforts to obstruct justice. Such a brief would have the virtue of being honest and forthright, as well as being stronger legally. Let’s see whether the federal judges would rule that this purpose was not specific and not legitimate. If they did, then at least it would clarify—and specify—who was and was not truly legitimate.