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House W&M finally sues for Trump tax returns.
The complaint should have stated the sincere reason for the request (high crimes and misdemeanors), not a pretext (oversight of audit process), even if pretext is otherwise legitimate.
After Census decision, this is a big error... 1/
The complaint should have stated the sincere reason for the request (high crimes and misdemeanors), not a pretext (oversight of audit process), even if pretext is otherwise legitimate.
After Census decision, this is a big error... 1/
2/ In Census case, there was an impermissible arbitrary/political/racial motive and a pretextual motive. SCOTUS rejected the pretext and the citizenship question (for now).
In House tax case, there are 2 real motives (high crimes and politics) and pretexts (e.g., audit process).
In House tax case, there are 2 real motives (high crimes and politics) and pretexts (e.g., audit process).
3/ US v. Nixon, the most important precedent on subpoenas, requires "good faith," to avoid fishing expeditions. If the official's motive is partly political, that's permissible as long as the official also gives the sincere, good faith legitimate reason. But Ways & Means failed.
4/ Consider a hypo: Statute says IRS "shall furnish." House chair requests tax returns from all GOP candidates running for president, and none from Democrats. Chair says "Oversight!" Motive is obviously partisan.
Should courts tolerate such a naked pretext for partisan purpose?
Should courts tolerate such a naked pretext for partisan purpose?
5/ Let's say there are valid questions about whether the GOP candidates are complying with tax laws. But also reasons to wonder if Dem candidates are, too. And yet House requests only GOP candidates. This should and would be impermissible...
6/ So in this Trump case, the only thing that saves this request, given the obvious partisan motive, is the good-faith, sincere, legitimate motive: to investigate high crimes and misdemeanors (motives, intent, Russian leverage), not pretexts on audits and tax compliance.
7/ Some cite Eastland on "speech and debate clause" to suggest courts can't inquire about congressional motives. I think Eastland was wrongly decided and in any case, wouldn't prevent courts from citing members' political speeches made outside Congress.
8/ This is a slow-motion House train wreck.
The House did not need to start a formal impeachment inquiry. It probably would have been sufficient to have included just a paragraph citing the Mueller Report, Russian business interests, obstruction & "high crimes and misdemeanors."
The House did not need to start a formal impeachment inquiry. It probably would have been sufficient to have included just a paragraph citing the Mueller Report, Russian business interests, obstruction & "high crimes and misdemeanors."
