A Presidential Right to Privacy

The latest demand from Democrats to investigate President Donald Trump has come from chairman of the House Ways and Means Committee Rep. Richard Neal, who wants the Internal Revenue Service to hand over his tax returns from 2013 to 2018, including those pertaining to his far-flung businesses.

The response from the White House was undoubtedly no surprise to Neal. The president declined to voluntarily release such information during the 2016 campaign, and there was no reason to suppose that he would do so now, after two years of the most bitter wrangling with Democrats over every aspect of his public and private life.

As White House chief of staff Mick Mulvaney told Fox News on Sunday, “That is not going to happen, and they know it. That’s an issue that was already litigated during the election. Voters knew the president could have given his tax returns, they knew that he didn’t, and they elected him anyway,” Mulvaney said.

Neal, aware that he would automatically be vulnerable to charges of politically-motivated harassment, couched his request to the IRS in the language of legislative oversight. He wrote that he needed Mr. Trump’s private tax materials in order to review the agency’s policy of auditing the tax returns of all sitting presidents and vice presidents, saying, “little is known about the effectiveness of this program.”

“On behalf of the American people, the Ways and Means Committee must determine if that policy is being followed, and, if so, whether these audits are conducted fully and appropriately,” Neal said.

Of course, it was only after Mr. Trump entered the White House that the chairman of Ways and Means discovered the high national purpose of reviewing presidential tax returns. As if this is an accident of history, unrelated to any partisan agenda.

While it is true that an obscure 1924 statute authorizes Ways and Means to requisition tax returns, it has to be based on some legitimate need for the public to know. That is why Neal bothered to conjure up a legal rationale. But one wonders if the courts, where the matter will presumably go, will find his argument sufficiently persuasive to justify such an unprecedented disclosure.

The Trump tax case illustrates the conflict that often arises between the Freedom of Information Act — the statute that enshrines the public right to know about public policymaking — and IRC section 6103, which protects taxpayers from forced disclosure. In previous cases, the IRC statute has proven to be a legally recognized exception to the FOIA.

Beyond the strict legalities, advocates of disclosure have cited a norm of political behavior in which presidents since Jimmy Carter have voluntarily made their tax information public. While this practice does not technically obligate any other president to do the same, they argue that a new norm of transparency has been established, and that for Mr. Trump to refuse to comply violates that ethic.

However, a norm, even more than written law, is a matter of interpretation. The thing lacks definition. How does something qualify as a “norm”? How many disclosures of this kind does it take to establish the new norm? How widely must it be observed in order to qualify?

In response to the tumult over the tax returns, lawmakers in New York and Maryland are reportedly working on proposals that would force disclosure through indirect means. Under consideration is a requirement that presidential candidates and other politicians must disclose tax returns in order to appear on the state ballot as a candidate. Ninety members of the recently-elected Democratic majority in the Assembly have signed on to a draft bill along those lines. In the Senate, their forces are reportedly still shy of a majority.

Ironically, neither of the two New York congresspersons who advanced the idea — Assemblyman David Buchwald, of Westchester, and Sen. Brad Hoylman, of Manhattan — have released their own tax returns! Obviously, notwithstanding what recent presidents have done, the supposed new norm of disclosure has not taken root in the country generally. Otherwise, no one would have to suggest new laws to compel disclosure. Everybody would be volunteering. (Something that they have not been doing.)

For those who are not satisfied, who insist that Mr. Trump’s refusal shows he must be hiding something, they should remember that that is what the IRS is for. In fact, his taxes are currently being audited. Any irregularities would be investigated by the diligent folks at the IRS.

In an era when the right to privacy has been elevated to a major constitutional guarantee, and when government and the private sector are under constant scrutiny for violations of individual privacy, it is unacceptable that the president of the United States should be the one person whose privacy is trampled upon at every opportunity.

Democrats ought to start focusing on the country’s real issues, instead of devoting their energies — and congressional resources — to harass the president for political reasons. Let the IRS do its job and let the lawmakers in Washington do theirs.