Congress' Power: Subpoenaing A President's Tax Records

The question of whether Congress can lawfully subpoena a sitting president's tax records is a complex one. While there is no law requiring a president to release their tax records, there are several precedents, including US v. Nixon, which show that a sitting president can be compelled to comply with a Congressional subpoena. However, in the case of a polarising figure such as Donald Trump, there could be roadblocks to subpoenaing tax returns, as the prosecution would need to show evidence of an underlying crime or that it would aid a criminal investigation.

The President can be sued civilly for action taken before, during, and after a presidency

There is no law requiring a sitting president to release their tax records – this is a purely political custom. However, there are numerous but non-intersecting grounds for Congress or a prosecutor to subpoena a record. For example, 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 authorised, it must pursue "a valid legislative purpose", and the inquiries must be pertinent to the investigation.

In the context of a subpoena for a tax return, 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. In the case of US v. Nixon, a sitting president was compelled to comply with a Congressional subpoena. However, a subpoena of the President's tax returns is usually not a subpoena personally directed at the President. 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.

The President maintains immunity from actions taken in an official context

While there is no law requiring a president to release his tax records, there are numerous grounds for Congress or a prosecutor to subpoena a record. 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.

The President maintains immunity from actions taken in an "official" context. However, the sitting United States President can be sued civilly for action taken before, during, and after a Presidency. For example, in US v. Nixon, a sitting president was compelled to comply with a Congressional subpoena. In Clinton v. Jones, a subpoena of the President's tax returns was not personally directed at the President. A President may seek to intervene as a third party to quash the subpoena.

The prosecution must show evidence of an underlying crime or that it will aid a criminal investigation

While there is no law requiring a sitting president to release their tax records, it is possible for Congress to subpoena them. This is because most civil courts do not see tax returns as privileged information. The sitting president can be sued civilly for action taken before, during, and after their presidency, although they maintain immunity from actions taken in an "official" context.

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.

A President may seek to intervene as a third party to quash the subpoena

While there is no law requiring a president to "release" his tax records, there are numerous but non-intersecting grounds for Congress or a prosecutor to subpoena a record. 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.

In the context of a subpoena for a tax return, the sitting President has been and can be subpoenaed, 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.

The investigation of the subject area must be authorised, it must pursue a valid legislative purpose, and the inquiries must be pertinent to the investigation

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 authorised to do. For example, in the case of US v. Nixon, a sitting president was compelled to comply with a Congressional subpoena.

However, there is no law requiring a president to "release" his tax records – this is a purely political custom. 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.

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