Below is my column in the Hill newspaper on the congressional push for past tax filings of President Donald Trump as well as investigations in the travel of Administration figures. I do not disagree with such public scrutiny, but Congress has conspicuously ignored past calls for the same transparency of its own practices and records.
Here is the column:
Congress has hit a new high in popularity with a 26 percent approval rating. That is right, the legislative branch finally gained the approval of one out of four citizens, a level that has not seen in years. Part of the alienation of the other three out of four Americans is that many believe Congress is incapable of doing the right thing, only the political thing.
But that is unfair. History shows Congress occasionally does the right thing, if it has no alternative. With controversies ranging from demanding the tax returns of President Trump to limiting the publicly funded travel of his administration officials, Congress could find itself dangerously close to doing the right thing, if the public leaves it with no other alternative.
The House Ways and Means Committee this week demanded the personal and corporate tax records of Trump. By refusing to release his records, Trump broke with decades of tradition in which presidents since Richard Nixon have recognized the legitimate public interest in seeing their taxes. However, lawmakers demanded six years worth of records while only vaguely stating a legislative purpose for its demand. If Congress wants to require all presidents to turn over their taxes, it can simply do so. It is, presumably, the absence of public disclosure, rather than the content, of the tax records of Trump that is the basis for the proposed legislation.
Federal law clearly favors Congress on such a demand, even though there are strong protections over the confidentiality of tax filings. Under the Tax Code, the Treasury secretary “shall furnish” such returns when demanded by certain committees. Yet, those committees may exercise that power only when they show a legitimate legislative purpose. Last year, the District of Columbia Circuit Court took pains to stress that exceptions to the rule of confidentiality are narrowly drawn and that the protections “extend to the ordinary taxpayer and the president alike.”
In Hallet Kilbourn versus John Thompson, the Supreme Court in 1881 held that Congress cannot demand private records without a legitimate purpose. More than 75 years later, the Supreme Court ruled again in John Watkins versus United States that Congress cannot use such powers for fishing expeditions and must have a clearly articulated purpose. The Supreme Court in Watkins drew this line to protect against the abuses of the House Un-American Activities Committee, warning that “there is no congressional power to expose for the sake of exposure.” It does not improve things to vaguely declare you are looking for un-presidential activities if you cannot articulate a “legitimate task of Congress.”
House Ways and Means Committee Chairman Richard Neal did not seek the tax records of Trump to investigate a specific criminal allegation falling under the jurisdiction of his panel. Instead, he described an effort to ensure the “accountability of our government and elected officials. To maintain trust in our democracy, the American people must be assured that their government is operating properly, as laws intend.” That sounds a lot more like a political pursuit rather than a legislative purpose. Moreover, the tax records issue could be tied up in the federal courts for months.
So here is an idea. Why not shove Congress over the public interest line and force it to disclose tax and investment information on all members, as well as presidents? House Speaker Nancy Pelosi has steadfastly refused to turn over her own tax records despite cosponsoring a bill to require presidents to do so. Her deputy chief of staff, Drew Hammill, virtually mocked the suggestion by saying Pelosi “will gladly release her tax returns if and when she runs for president.” The problem is that Pelosi has great ability to advance her own financial interests in her position and is just two succession slots away from becoming the president during a crisis.
For years, I have argued for lawmakers to disclose their investments or, better yet, put their investments into “blind” funds. Currently, members of Congress can invest and legislate in the same areas, enabling them to make windfall profits as a result of inside information tied to upcoming legislation. It is time for the goose to meet the gander. We must require transparency from both political branches we elect to serve the nation.
Congress is investigating the publicly funded travel of administration officials from Cabinet members to Ivanka Trump. Congress rightly investigated former Environmental Protection Agency Administrator Scott Pruitt over his penchant for first class tickets and charter flights. This again puts Congress on the edge of doing the right thing.
For decades, I have called for the end of junkets allowing members of Congress to take thinly disguised vacations at public expense by holding a couple meetings on some perfunctory legislative subject. I also have called for a ban on travel paid by third parties, which is little more than legalized influence peddling. While lawmakers insist that flying to the Caribbean is key to planning legislation, it is abundantly clear that such information can be conveyed through material sent to their offices.
Lawmakers have refused, however, to give up being whisked around the world with an army of handlers and aides. The public pays millions of dollars for members of both parties to go on junkets, with the cost hidden in various budgets. Over two years, Pelosi spent more than $2 million on such trips. Her trips in 2015 cost the Air Force more than $184,500. She and nine other members of Congress were given tours of the Vatican and reported had meals costing up to $190 each. Of course, it was necessary to have family members along for the “education” to be complete.
In January, as federal employees went unpaid for weeks during the government shutdown, some 30 Democratic lawmakers took a chartered flight to sunny Puerto Rico with more than 100 lobbyists and corporate executives. On the itinerary was the educationally important stop to see the hit Broadway show “Hamilton” and attend a party with the cast.
The same is true of sponsored trips. Last December, Gregory Meeks, Barbara Lee, Bobby Rush, Terri Sewell, and Hank Johnson used $60,000 from an outside group to fly to South Africa and attend a concert with Beyonce, Jay Z, Ed Sheeran, Pharrell Williams, and Chris Martin. These kinds of trips are a bipartisan scam by members of Congress emboldened by the silence of voters. We should send a clear message that they need to pay for their own tickets to faraway concerts or simply buy the album.
Of course, members of Congress have alternatives to legislating in the public interest as opposed to their own. Blinded by rage, most voters do not see, or want to see, the glaring contradictions in these proposals to pick apart the actions of the Trump administration while ignoring those of Congress. Rage rather than reason is the touchstone of our times. So unfortunately for citizens, lawmakers can no doubt rest easy that they are still short of that “no option” position of having to do the right thing.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.