The Presumption of Regularity and The Mandatory “Shall” (Update x2)

In his April 13th letter to Steven Mnuchin, Secretary of the Treasury, demanding Trump’s tax returns, Chair of the Ways and Means Committee Richard Neal relies on a foundational principle that is critical to making government function, the presumption of regularity.

Third, concerns about what the Committee may do with the tax returns and return information are baseless.  As my April 3rd letter noted, this request falls squarely within the Committee’s oversight authority.  It is well-established law in the D.C. Circuit that “[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007) (citation omitted); Exxon Corp. v. FTC, 589 F.2d 582, 589 (D.C. Cir. 1978) (“committees of Congress will exercise their powers responsibly and with due regard for the rights of affected parties.”).  In other words, the IRS, Treasury, and Justice must assume that the Committee Members, like all government officials, will act properly in the conduct of their official duties.

Does anyone still believe it? There is certainly a significant contingent of the citizenry who doubts Trump’s good faith and honesty, mostly because he can’t tell the truth about much of anything and keeps getting caught in ridiculous lies. Is Congress any more credible? Is the attorney general or the treasury secretary?

In a normal world, Trump would have disclosed his tax returns before being elected, as has every president since Nixon. But gaming norms has worked for Trump, and it revealed a gap in legal obligation that nobody would have thought needed filling until now. And so, Trump’s tax returns remain secret, whether because they reveal he’s all hype and no cash, or that his income is courtesy of the Kremlin. There are many reasons, ranging from voyeuristic to legitimate concerns about foreign powers to which he’s financially beholden, that justify demands for his tax returns.

But what isn’t legitimate was the rationale proffered by Chairman Neal.

Many people who, like me, would like very much to see Trump’s tax returns have made strong and sound arguments in favor of disclosure. But no serious person has argued that Neal’s rationale passes the laugh test, that this isn’t about Trump but just Congress doing its oversight thing about presidential return review in general. And, indeed, the request for pre-presidential returns kinda turns the rationale from laughable to absurd.

Neal argues that treasury has no authority to question Congress’ motives, and must accept them as legit because he’s entitled to the presumption of regularity. Then there’s the question of whether the returns, if they were revealed, would remain secret or would appear on the front page of the New York Times the next day, via an anonymous source perhaps. Again, Neal falls back on the presumption, as Congress is regularly given secret info and doesn’t disclose it. Why question it this time?

The challenge to Mnuchin is whether he must “obey the law” as set forth in 26 U.S. Code § 6103, which states that:

the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

The phrase “shall furnish” is mandatory, and proponents hang on those words. But as with most things in law, it’s not quite so simple. The demand must nonetheless “reasonably serve a legitimate legislative purpose.” In other words, the Ways and Means chair can’t demand Beyoncé’s tax returns because it would be so cool to see them. Or yours. Or mine. Or Chuck Schumer’s or Mitch McConnell’s.

Among the many ironies here is that the caveat would, if “obey the law” was adhered to by all involved, preclude the committee from making the returns public, as it requires they be furnished “only” in “closed executive session.” So Neal, et al., would see them, but couldn’t tell anyone what they saw. That would suck the fun out of it, assuming it happened that way. Presumption of regularity.

What does Trump have to hide? Like many others, I suspect a lot, mostly that his returns will reveal he’s a third-rate showpony whose claim to being a billionaire is garbage and who has shamelessly lied on his tax returns. But if we’re going to rely on the presumption of regularity, we’re constrained to presume that his refusal to disclose his tax returns is done in good faith, in furtherance of legitimate concerns of privacy, and not to conceal impropriety. Just as Neal expects the presumption to apply to his asinine rationale, so too would it apply to Darth Cheeto. And, for that matter, to Steve Mnuchin, not to mention his legal adviser, Bill Barr.

Is anyone buying the presumption of regularity? Does it cover the sins of either Trump’s concealment of his tax returns or Neal’s demand, or Mnuchin’s refusal and Barr’s advice on the scope of his duty to comply? Nah.

Well before the notion of Trump being elected president was more than a bad joke, I argued that we needed the presumption of regularity, that as painful as it was to not reject it for those we despised while swearing to it for those we favored, it was a foundational need in a functioning republic.

As Edmund Burke admonished, “The only thing necessary for the triumph of evil is for good men to do nothing.”  There is nothing wrong with the presumption of good faith, and our nation would cease to function without it.  What is wrong, and deeply wrong, is that those empowered to decide whether the presumption is rebutted lack the fortitude to serve the public, honor the Constitution and protect society.

We are a nation of laws, not men. That’s because men are flawed. Don’t blame the law. Blame the cowards, the ignorant and the venal.  And do something about them.

This sounds horribly idealistic today, both because it would allow Trump to get away with it and Neal to get away with it too. We’re now caught in a trap of our own making, as nobody is worthy of the presumption of regularity anymore, and yet without it, we’re doomed.

Update: Just for kicks, here’s the legal brains behind ThinkProgress, Ian Millhiser’s view of the issue.

In his letter to Neal, Mnuchin claims that “Congressional information demands must reasonably serve a legitimate legislative purpose” — and thus any demand which does not serve such a purpose is unconstitutional. This statement is mostly true, but it is incomplete. And it doesn’t help Trump’s case. At all.

Why? Well, only Ian can explain Ian.

Update 2: And the New York Times has staked out its editorial position.

Just as the law is clear on this matter, so too is Supreme Court precedent. The court has repeatedly affirmed the validity of congressional actions taken within the “sphere of legitimate legislative activity” — and it has recognized that this sphere is far-reaching, encompassing “inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.”

In examining Mr. Trump’s tax returns, Congress could determine that legislation forcing disclosure of a candidate’s tax returns is necessary to guard against future presidential corruption and conflicts of interests.

They need Trump’s returns for that? Six years of returns? Except that’s not why Neal claims he needed them.

The purpose of the request was not “harassment” of the president, as Mr. Trump and his defenders have branded efforts by Democratic House members to perform legitimate oversight functions. Rather, as Mr. Neal told the I.R.S., the committee “is considering legislative proposals and conducting oversight related to our Federal tax laws, including, but not limited to, the extent to which the I.R.S. audits and enforces the Federal tax laws against a President.”

Stop laughing. The NYT is very serious.

10 thoughts on “The Presumption of Regularity and The Mandatory “Shall” (Update x2)

  1. JMK

    Hasn’t “presumption of regularity” already gone out the window with TrumpLaw? If you’ve now got a whole body of case law that boils down to “we know what you say you’re going to do with this power you lawfully have, but since we don’t believe you you can’t do it” then this is just the reaction, as Newton predicted.

    As YOU predicted, for that matter, since you’ve been warning about the inevitability of this very thing for two years now.

    1. SHG Post author

      Perhaps the reason I continue to bring this up is my naive hope that there is a still a chance for people to pull their respective heads out of their respective asses and grasp that the only possible outcome is mutually assured destruction. We’re not dead yet.

  2. B. McLeod

    “I’m from Congress, and I’m here to help you” is even scarier than “A French battalion will support you on your left.”

  3. Pedantic Grammar Police

    Our rulers and their courtiers have known for a long time that laws are for the little people. What has changed is that now they and their sycophants in the media have abandoned the old “gentleman’s agreement” to not mention each other’s crimes in public. This is a good thing. As both sides of the MSM simultaneously bloviate about the horrible evil crimes of the other side while defending the perfectly understandable minor transgressions of their own, we slowly begin to see them for what they are.

  4. Jim Cline

    I guess I would just like to know if he lies when the penalty is imprisonment or fines as much as he does when the only penalty is ridicule.

  5. Onlymom

    I really liked this part.
    “We are a nation of laws, not men. That’s because men are flawed. Don’t blame the law. Blame the cowards, the ignorant and the venal. And do something about them”

    It is in fact why we have that hated Second Amendment because eventually if the people don’t ad you say “pull their heads out of their *ss” that will be the only way to fix the problem

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