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President Trump's tax records, and the question of whether Congress can access them, have been on the news for years. In all this time, I've never heard any analyst debate whether or not a president is legally required to release his tax records.

In the past, many candidates released their tax records. Is this just a norm as opposed to a rule? Can Congress demand a president release his records? Is the NY attorney subpoenaing Trump's tax records under a different pretense? Is it part of their criminal investigation? Are the laws on this matter regarding private citizens different than for public officials?

  • The short answer is unequivocally yes. – ohwilleke Sep 19 '19 at 21:01
  • @ohwilleke to add to your point is we really don't know what happens if a President is to outright refuse a subpoena. – User37849012643 Sep 20 '19 at 8:22
  • @StephanS I'm not sure that's true. There is U.S. v. Nixon and Clinton v. Jones that are precedents. And, a subpoena of the President's tax returns is usually not a subpoena personally directed at the President. It is ultimately not the President's to comply with or not. A President may seek to intervene as a third-party to quash the subpoena but that is very different from trying to impose civil or criminal liability upon the President personally, or trying to hold the President in contempt of court. Presidents have lost opposing third-party subpoenas of all sorts. – ohwilleke Sep 20 '19 at 15:03
  • @ohwilleke Clinton had his Subpoena retracted because he volunteered, and U.S. v. Nixon would probably fit better, but what I'm trying to get that is we really haven't seen what penalties there are if a President just refuses to compile with a subpoena after their motion to quash is denied, well other then the 1807 treason trial of his former vice president, Aaron Burr but that was hundreds of years ago. – User37849012643 Sep 20 '19 at 22:20
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    @StephanS You are missing an organization you can sue for tax records. Most of the subpoenas are directed at banks that Trump did business with, to whom he voluntarily disclosed his returns, and to his accountants. nytimes.com/2019/09/16/nyregion/trump-tax-returns-cy-vance.html – ohwilleke Sep 20 '19 at 23:19
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There is currently no law requiring a candidate for US President to release tax records to appear on the ballot. Nor is there any law requiring the President to release such records after taking office. There are laws requiring members of congress, and other Federal officials, to make public some limited information about their finances. This is much less than the information that would be included in an income tax return.

Congress could pass a law requiring candidates to release their returns, but it seems unlikely that the current Congress will do so. States have broad authority over Federal elections. A state could pass a law requiring a candidate to release his or her returns as a condition of appearing on the ballot. Such a law might be challenged on Due process grounds. This would be an untested legal area, so there is no telling how a court would rule on such a challenge to such a law.

Congress, or an individual house of Congress, may subpoena almost any information in pursuit of its investigation function. Investigations must be related to possible legislation, meaning it must be related to a subject about which Congress has power to pass a law. But the relation can be rather remote, as long as the information might inform the judgement of members of congress in considering a possible law. There does not have to be an actual law under consideration.

Investigations have been challenged, and in a few cases there have been court rulings that an investigation was not related to possible legislation, and so Congress was not allowed to enforce subpoenas on that subject, nor to compel testimony. But such rulings have been rare.

Previous Presidents have asserted, under the name of "Executive privilege", a right not to disclose information, such as internal discussions within the executive branch. This is not explicitly specified by the US Constitution, nor by any law, but has been generally accepted, and in some cases supported by court rulings. No court has ever clearly defined the extent or limits of Executive privilege.

A House committee issued a subpoena this year for President Trump's tax records, or some of them. I forget whether this was addressed to the IRS or to the Treasury Dept. This has been challenged in court, and the matter is still in court. I be3live that one of the grounds asserted against the subpoena was that it was not to look into tax issues, as specified in the law authorizing the subpoena.

No one yet knows how that case will proceed.

The NY State Attorney General is investigating allegations that the Trump Organization, and various individuals, violated NY law, including by falsely reporting campaign expenses and contributions. In pursuit of that investigation, he issued a subpoena for various records which he claims will reveal possible evidence of those illegal actions. He pretty learly has the authority to subpoena records which might be evidence in a criminal case. This subpoena has also been challenged, but seems pretty likely to be upheld. However the subpoena was as part of a Grand Jury investigation, and Grand Jury proceedings, including evidence obtained by subpoena, are by law secret unless an indictment and trial results. So even if the subpoena is upheld, this should not lead to the public release of the records, unless someone is put on trial for some crime, and the records are evidence in that case. Even then the judge can order the records not to be released to the public.

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    Wouldn't Congress passing a law requiring candidates to release their returns create an extra-constitutional requirement for the office of President? – Dave D Sep 19 '19 at 18:07
  • @DaveD State and Federal laws already create many requirements, such as being nominated by a party, or by petition, not specified in the Constitution. The whole primary system is not mentioned in the Constitution. Congress has the power to pass laws on such subjects, if it chooses to do so. The wisdom or political feasibility of such laws is a different issue. – David Siegel Sep 19 '19 at 18:11
  • @DavidSiegel I'm not sure where you got that Congress can pass laws on the requirement for becoming President because the Presidental requirements are outlined in the constitution, it would seem that if requirements are added for becoming President the constitution would need to be amended (what I'm asking might read harsh but it's an actual question). I'm not sure if not being nominated by a party, bars you from becoming President. – User37849012643 Sep 20 '19 at 8:17
  • @StephanS Art II Sec 1 #4 and Art I sec4 #1 authorize Congress to make or alter regulations for elections. Ballot access laws (how a person is nominated) are mostly made by the States but can be altered by Congress. Such laws now specify, for example, how many nominating signatures are needed to get on the ballot. The Constitution nowhere mentions nominating petitions, it leaves all that sort of thing to implementing laws. Tax returns could be mentioned in such laws, but currently are not. A few states considered such provisions after the 2016 election. – David Siegel Sep 20 '19 at 12:09
  • @StephanS A person must appear on the ballot to have any reasonable chance of being elected. Generally a person must either be nominated by a party, or have a sufficient number of sigs on a nominating petition to be on the ballot, all this is set by law, not by the constitution. – David Siegel Sep 20 '19 at 12:12
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Since Trumps tax records were actually subpoenaed, the quick answer is "yes". The long answer, addressing the question of whether the subpoena will survive judicial scrutiny, is "maybe". However, there is no law requiring a president to "release" his tax records – this is a purely political custom.

There are numerous but non-intersecting grounds for Congress or a prosecutor to subpoena a record. New York prosecutors can subpoena for matters that pertain to New York state law, and Congress can subpoena for matters that pertain to what Congress is authorized to do. In the case of a Congressional subpoena, some (sub)committee has to issue a subpoena for some document(s). An actual subpoena is different from a simple request. There are rules, see Wilkinson v. US, 365 U.S. 399. The investigation of the subject area must be authorized, it must pursue "a valid legislative purpose", and the inquiries must be pertinent to the investigation. US v. Nixon is an example showing that a sitting president can be compelled to comply with a Congressional subpoena. In the Operation Fast and Furious case, President Obama invoked executive privilege to refuse to comply with a subpoena, a position which a federal court disagreed with but SCOTUS did not address (the case was settled, under the current administration). This article gives an overview of the state of the law regarding executive privilege.

On the face of it, a Congressional subpoena of Trump tax records would fail the requirements for valid subpoena (there is no "subject matter"). That can change.

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Header Notes


There are two sides to this coin and depending on which side we're talking about can change the answer completely, the two sides are Tort law, and criminal law.

Another important area to look is it an individual being subpoena, or is it a company own by an individual, these two things don't share the same type of protection against a subpoena

Short answer: There are avenues that both types of laws use to obtain privileged information such as tax returns, but since the subject is the President different rules might apply(e.g. rules for the Executive branch might apply), my answer may not properly address the fact that the subject is the President.

Subpoenas in Civil


For the use of the taxes in a civil case (tort brought by another private citizen), a subpoena duces tecum (A fancy way of saying disclose documentation) can be brought to produce the tax returns or face punishment by the court in the form of fines, or jail time. This can smoothly be done because most civil courts don't see tax returns as privileged information.

In this context would this rule apply to the sitting United States President? Well, the answer is yes, the sitting United States President can be sued civilly for action taken before, during, and after a Presidency, although the President does maintain immunity from actions taken in an "official" context. This rule was adopted in The Supreme Court's 5-4 decision Nixon v. Fitzgerald stating:

the President is entitled to absolute immunity from liability for civil damages based on his official acts. The court emphasized that the President is not immune from criminal charges stemming from his official (or unofficial) acts while in office.

Civil cases against the President

Subpoenas in criminal


Subpoenas in the criminal contexts are alittle bit different due to fifth amendment violations.

Subpoenas for an individual

being Subpoenaed as an individual in a criminal context makes you a witness, and although you have to testify you may take the fifth for questions that might self incriminate.

If you are the subject of the criminal case you aren't subpoenaed to show up, you are arrested and charged, and if the prosecution needs relevant information from you it isn't subpoenaed in is obtained through a warrant.

Subpoena for a company

In a criminal case against a company, companies do not have protections under the fifth amendment, furthermore individuals action to hold documentation for a company also doesn't have protection under the fifth amendment.

Subpoena for the President

There have been three times in history that a sitting President of the United States has been subpoenaed, Thomas Jefferson, Richard Nixon, and Bill Clinton.

Thomas Jefferson refused the subpoena because the travel wasn't possible.

Richard Nixon was subpoena duces tecum for tapes pertaining to his involvement in Watergate, Nixon refused and challenged it in court which ended in the 8-0 decision US vs Nixon where Nixon was ordered to turn over his tapes. Nixon argued that he had article 2 protections but the courts ruled a President wasn't immune from criminal charges. Nixon resigned before he was subpoena ad testificandum (called to testify).

Bill Clinton was subpoena ad testificandum, but agreed to testify voluntarily which prompted Ken Starr to withdraw his subpoena.

So there isn't any history about what happens if a President just outrights refuses to follow a subpoena ad testificandum but there have been cases where Presidents have been subpoenaed.

Summary


In the context, your question provides the sitting President has and can be subpoenaed for something such as a tax return although it isn't a rule for them to do so.

There's no doubt that Donald Trump is a polarizing figure, which could lead to selective prosecution that could be a possible roadblock to subpoenaing tax returns, the prosecution has to show that they have evidence of an underlying crime, or that it will aid them in a criminal investigation, they can't just subpoena them for the purpose of releasing them to the public.

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