"The statute is very clear and seems like very strong support for what Mr. Neal is trying to do," said Yin, who said he'd advise Mnuchin to proceed cautiously. "I think he obviously needs to think very seriously about that; now he might not care if he gets fired, but I think he would care if he gets sent to jail."
The best route, to McDaniel's thinking, is for the House to find Mnuchin in contempt of Congress.
The House "could then apply to a court to enforce that contempt order, by requiring him to turn it over or suffer some coercive penalty," McDaniel said. "They fine somebody, or put them in jail until they comply."
Issuing a subpoena for the returns, McDaniel said, would be a waste of time, since the statute clearly states Mnuchin "shall furnish" any tax return requested by the Ways and Means chairman. "This statute is good and it's better than a subpoena," said McDaniel, who said he'd advise Neal to pursue a standalone court case if the contempt of Congress route isn't taken.
New Jersey Democratic Rep. Bill Pascrell Jr. a senior Ways and Means member, recently floated the prospect of a House-issued contempt citation.
Yin said a subpoena would be the safer option at first, since there is wide legal precedent for holding someone in contempt for not complying with what a court finds to be a valid subpoena. Holding the Treasury secretary in contempt for not complying with Section 6103 has never been tried before.
"We're on uncharted territory because to my knowledge, the authority has rarely been exercised and when it has been, there hasn't been a refusal," he said.
Trump's lawyer William Consovoy argued in an April 5 letter to Treasury general counsel Brent McIntosh that the tax code "zealously guards taxpayer privacy," that Congress can use its investigative powers only as part of its legislative authorities and that "there is no congressional power to expose for the sake of exposure."
But the privacy protections were added to Section 6103 in 1976 in reaction to abuses by Nixon, Yin noted.
Not only is there "no wiggle room" in the law, the legislative history of Section 6103 appears to be on Neal's side as well, Yin said.
The original intent of the section when it was written in 1924 was in response to three concurrent events, he said. First, Congress wanted to investigate abuses at the IRS' predecessor, the Bureau of Internal Revenue. The second was the Teapot Dome scandal involving private oil leases granted by the government in Wyoming. And third was a desire to investigate the business ties of Treasury Secretary Andrew Mellon, one of the country's most prominent industrialists.
At that time, only the president could get tax return information and President Warren G. Harding had not complied with congressional requests for tax return information for these three investigative areas, Yin said.
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