You might be able to fight Congress, but you can’t fight City Hall. And you sure as hell can’t fight Albany. Which makes New York City an odd place to headquarter your business if you want to wage war on the Democratic and democratic establishments.
Donald Trump’s minions at the IRS are frantically constructing a wall around his taxes out of a 43-year-old Supreme Court footnote; Stephen Mnuchin has psychoanalyzed Democrats on the House Ways and Means Committee and found that they lusted in their hearts, magically transforming a mandatory statute into a discretionary one; and Trump’s lawyers are filing nonsense lawsuits threatening Deutsche Bank, Capital One, and Mazars USA with the severest penalties should they comply with validly issued congressional subpoenas.
Meanwhile, New York legislators are building a bridge (and tunnel) to ferry Trump’s state tax returns to Congress. It’s true, you really can get anything delivered there!
Yesterday, the New York State Senate passed a bill requiring the state Commissioner of Taxation and Finance to hand over tax returns upon request of the House Ways and Means Chair, the Senate Finance Chair, or the chair of the Joint Committee on Taxation for the United States Congress. And if that sounds familiar, it’s because it closely mirrors the federal statute requiring the IRS to comply with similar requests. The same law that Steven Mnuchin is assiduously misconstruing while waiting for the Justice Department to dummy up some kind of response.
The bill passed 39-21, with Democrats voting to advance it to the State Assembly, where their party holds a two-thirds majority. If signed by Governor Cuomo, the state might pass legislation and produce the president’s personal, business, and trust returns for Congress in less time than it takes to shake them loose in court if Trump digs in and fights all the way to the Supreme Court as promised.
Senate Majority Leader Andrea Stewart-Cousins congratulated the body, saying, “Today, we are sending a message that no one is above the law.” But Republicans protested that the statute amounted to a bill of attainder, directed squarely at Donald Trump and no one else.
And, in a sense, they do have a point. There is probably only one person in America crazy enough to go on television and brazenly announce his intent to defy all congressional subpoenas. Clients who sue their own accountants in a desperate bid to slow down the inevitable publication of their finances are thin on the ground. Who else would order the IRS Commissioner to ignore the plain meaning of the statute and risk being charged with obstruction of Congress? The fact that only Donald Trump is batcrap insane enough to break these laws does not, however, turn him into Terry Schiavo.
Speaking of laws that could only apply to a power-mad dictator, the New York State Senate also passed a bill yesterday exempting certain presidential pardons from the state’s double jeopardy law. The bill allows for state prosecution of relatives or associates of the president who are pardoned for conduct which is also a state crime. Suppose, by way of example, the Southern District of New York determined that a company domiciled in Manhattan had improperly deducted a $130,000 payment to keep a pornstar quiet as a business expense. If the executive who signed the checks reimbursing the lawyer for the hush payment were indicted for tax fraud and then happened to be pardoned by the president, the State of New York would no longer be barred from prosecuting said executive for violations of state tax law. Just hypothetically.
Once again, the fact that Donald Trump is the only president craven enough to violate these particular statutes does not make them bills of attainder. It makes them rational responses to a sustained attack on the rule of law. And if Donald Trump doesn’t like it, he’s free to up sticks and park the Trump Organization in a state with an Attorney General more to his liking than Letitia James. Or, he could hand over his tax returns like any other American and quit dangling presidential pardons as get out of jail free cards for witnesses who might be thinking of testifying against him.
You pays your money, you takes your choices.
Act to Amend the Criminal Procedure Law, in Relation to Presidential Reprieve, Pardon or other Form of Clemency and Previous Prosecution [S4572]
Act to Amend the Tax Law and the Administrative Code of the City of New York, in Relation to Requiring the Commissioner of Taxation and Finance to Cooperate with Investigations by Certain Committees of the United States Congress [S5072A]
New York Senate Passes Bill to Aid House in Trump Tax Fight [Courthouse News Service]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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