New York Law Makes It Easier For Congress To Get Trump’s Tax Returns

New York Governor Andrew Cuomo has signed into law a bill that will make it easier for Congress to get President Trump's tax returns.

New York Governor Andrew Cuomo has signed into law a bill that would allow the House Ways and Means Committee to obtain copies of state tax returns of an individual, or presumably a corporation, residing in New York, a move that could make it easier for Congress to obtain information about President Trump’s taxes and personal finances:

As the battle over President Trump’s federal taxes intensifies in Washington, Gov. Andrew M. Cuomo of New York signed a bill on Monday to allow congressional committees to access the president’s state tax returns.

The bill requires state tax officials to release the president’s state returns for any “specified and legitimate legislative purpose” on the request of the chair of one of three congressional committees: the House Ways and Means Committee, the Senate Finance Committee and the Joint Committee on Taxation.

It is effective immediately, though it is unclear whether it would be challenged by the Trump administration, or used by the congressional committees; the Ways and Means Committee, for instance, has said previously that it remains focused on pursuing Mr. Trump’s federal tax information.

Still, the state tax documents from New York — the president’s home state and business headquarters — would likely contain much of the same information as the contested federal returns, tax experts say.

Mr. Cuomo, a third-term Democrat and frequent critic of Mr. Trump, said that signing the bill would help Congress “fulfill its Constitutional responsibilities, strengthen our democratic system and ensure that no one is above the law.”

The Legislature had passed the measure in late May; Dani Lever, a spokeswoman for the governor, said that the six-week delay in signing the bill was because the governor’s office needed to do a diligent analysis of the legislation and its amendments.

“Any responsible government would thoroughly review this bill, just as we will with more than 930 bills passed this session,” Ms. Lever said, noting “how high the stakes are of this particular legislation.”

The bill signing is the latest in an escalating series of statements and actions that the Cuomo administration has taken against Mr. Trump or his policies.

Earlier last week, the president used Twitter to lash out at Mr. Cuomo and the state attorney general, Letitia James. Without mentioning Ms. James by name, the president said she was “harassing all of my New York businesses in search of anything at all they can find to make me look as bad as possible.”

Ms. James’s office is investigating the financing behind several major Trump Organization projects and a failed effort to buy the Buffalo Bills of the National Football League in 2014, and has issued subpoenas to Deutsche Bank and Investors Bank.

After Mr. Trump’s tirade, Mr. Cuomo responded, “If he is worried about law enforcement, he shouldn’t break the law.”

On Wednesday, Mr. Cuomo called for a probe into the Trump administration’s handling of relief efforts after Hurricane Maria devastated Puerto Rico, blaming the island’s slow recovery on “President Trump’s neglect and refusal to provide adequate assistance.”

Two days later, the governor slammed the president for continuing his efforts to include a citizenship question on the United States census, accusing Mr. Trump of “using the census as a political pawn in his anti-immigrant agenda.”

Now, Mr. Cuomo is pushing forward to give Congress a path to obtain Mr. Trump’s state tax returns. The White House had no immediate comment on the governor’s decision to sign the bill.

All of this takes place in the context of a battle between the House Ways And Means Committee and the White House regarding the President’s Federal tax returns. Back in April, Congressman Richard Neal, the Chairman of the Committee, sent a request to Treasury Secretary Steve Mnuchin and I.R.S. Commissioner Charles Rettig requesting those returns. That request was made pursuant to 26 U.S.C. 6103 which, among other things, allows the Ways And Means Committee to request copies of the tax returns of any individual American. Despite that statute, Treasury Secretary Steve Mnuchin has refused to comply with both a written request and a subpoena for these documents. In refusing these requests, Mnuchin argued that the request, and subsequent subpoena, lack a “legitimate legislative purpose,” an argument that the Administration has made in a number of other situations where it is refusing to comply with seemingly legitimate document requests.

That means the committee was left with two options. One option would have been to hold Mnuchin in contempt, which seems like a fruitless pursuit since the Justice Department is unlikely to pursue enforcement of any Congressional contempt citation against an Administration official. The other option was to file a lawsuit seeking a Court order compelling him to turn over the requested documents. Last week, the Committee filed a lawsuit against Mnuchin and other parties seeking an order requiring them to turn over the returns as required by law.

As noted, the New York law would allow the Ways and Means Committee to request copies of the state tax returns of any New York State resident. While the law applies generally to any taxpayer, it is obviously most specifically aimed at President Trump. In that regard, it’s worth noting that the New York State returns would contain must of the same information that would be included in the Federal return. Unlike some states, though, New York apparently does not require taxpayers to send a copy of the Federal return when they file their state return. Despite this, the state returns filed by the President, while they would likely not be quite as insightful into his finances as the Federal return, would provide at least some clues to investigators that could lead to other information, as well as allowing accountants to reconstruct what the Federal returns probably look like given the information in the Federal return.

Jazz Shaw at Hot Air notes the objections that some have made to the law:

What’s going on here seems fairly obvious, despite the Governor’s best efforts to paint a more benign face on it. This appears to be a clear example of a bill of attainder, which means there should be grounds to immediately challenge and perhaps overturn it. You’re not allowed to use your executive or legislative power as a cudgel and craft laws that are specifically aimed at one person or a specific group of people just to advance your own political agenda.

Keep in mind that in all of the flurry of legal activity taking place in the offices of the New York Governor and the new Attorney General, demanding documents and records from the President and his various businesses, there has yet to be a single charge of a specific crime brought. These are fishing expeditions, plain and simple. And now, this new law opens a path to have the state turn over someone’s tax returns for similarly vacuous reasons. On top of that, Congress hasn’t even asked New York for Trump’s tax returns. The #RESIST movement in the state government is just freestyling here.

The “Bill of Attainder” argument is one that was made when the law was still pending in the state legislature, and it is likely the reason that the Governor’s office delayed signing the bill until now. I addressed that argument in my post six weeks ago:

The most potent argument against the law would be that it amounts to a “Bill of Attainder,” which the Constitution bans both Congress, in Article I, Section 9, Clause 3 and the states, in Article I, Section 10, Clause 1, from passing.

Generally speaking, a Bill of Attainder is a bill or law that is aimed at inflicting punishment on a specific individual. For the most part, courts have interpreted these clauses narrowly and in the context of what was considered a Bill of Attainder at the time that the Constitution was drafted. Therefore, there is a strong argument that the prohibition set forth in the Consitution only applies to laws that contain some sort of criminal punishment, which isn’t the case here.

Even if this law did fall within the general category of what could be considered a “Bill of Attainder,” though, it’s worth noting that the law allows the committee to request the return of anyone who files a return in New York State as long as they meet the standards set forth in the statute. It doesn’t just limit itself to people named “Trump.”

In fact, the new law amends the relevant state tax laws to authorize tax authorities to:

[S]hare state income tax returns and reports upon the written request of the Chairperson of the U.S. House Ways & Means Committee, the U.S. Senate Finance Committee, or the Joint Committee on Taxation. The Commissioner is required to redact any information that, if disclosed, would violate state or federal law or would constitute an unwarranted invasion of personal privacy (e.g. social security numbers, account numbers, and residential address information).

The new subsection provides that such request must be accompanied by certification that the tax returns or reports have been requested for a specified and legitimate legislative purpose, the requesting committee has made a written request to the U.S Secretary of the Treasury for related federal returns or return information and that the returns will be treated by the requesting committee in a manner consistent with federal law authorizing the same committees to request and receive federal income tax returns from the U.S. Treasury.

In addition to applying to any New York resident, the law also applies to tax information regarding corporate taxes, Franchise taxes, taxes on petroleum businesses, taxes on alcoholic beverages, as well as other taxes under New York law. Therefore, the argument that the law, as written, is solely directed at the President is belied by the very text of the statute. Additionally, since the law is not specifically directed at Trump and is not one that carries any criminal implications that would be directed at the President, it seems clear to me that the argument that it constitutes a “Bill of Attainder” is without merit.

Despite this, I am sure the President will seek to have his private attorneys try to block the statute, largely because of his insistence on stonewalling Congress at every turn. Whether those efforts will succeed is another question.

FILED UNDER: Congress, Donald Trump, Law and the Courts, Politicians, Taxes, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Daryl and his brother Darryl says:

    the New York law would allow the Ways and Means Committee to request copies of the state tax returns of any New York State resident.

    The Democrats in Congress will be too scared to ask.

    ReplyReply
  2. Jay L Gischer says:

    Hmm, the New York law seems like it might assist with investigations into other individuals who might have filed tax returns in NY State. Such as Jared Kushner, Felix Sater, and so on.

    I can’t see “bill of attainder” here. It’s topical, but it definitely applies to a class of people, not an individual.

    ReplyReply
  3. Tyrell says:

    @Daryl and his brother Darryl: Then whose tax returns are safe? I know that law is in New York and applies to their citizens. But watch for other states to get into the act. My tax returns should be my property and only the IRS should be allowed to access them. What is next? Medical records? School report cards? Employment applications?
    We are in a total decline of confidentiality and privacy. Cameras everywhere, bank accounts broken into, and cell phone eavesdropping galore.
    To get my tax records someone better show me a warrant from a Supreme Court judge. And at that, I would still think about it.

    ReplyReply
  4. grumpy realist says:

    @Tyrell: Um…..I take it you have never filed a state income tax form?

    No wonder you get all those nasty letters from them.

    ReplyReply
  5. Teve says:

    Then whose tax returns are safe?

    Was it 2 days ago that I said in conservative minds every slope is slippery? 3?

    ReplyReply

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