President Donald Trump has already described the multiple investigations into possible collusion between Russia and his presidential campaign as a “witch hunt”—the word he has used in several angry tweetstorms since entering the White House. But he might be even more disturbed when he realizes that the latest of those investigations—by the newly named special prosecutor, former FBI Director Robert Mueller—could amount to a double-punch to the president and resolve one of the greatest mysteries of the 2016 campaign:
What, exactly, is in Trump’s tax returns?
The president and his beleaguered White House staff have given no outward sign that they have thought about the prospect yet. But in interviews, veteran federal prosecutors and legal scholars said that Mueller, who began his investigation only last week, has clear-cut authority to obtain the president’s tax returns—perhaps the most sensitive and sought-after government documents since the Pentagon Papers—from the Internal Revenue Service if Mueller suspects they might contain evidence of a crime.
And short of firing Mueller and shutting down his investigation, Trump—who is the first president in 40 years to refuse to make his tax returns public, despite once promising to do so— would have almost no way of stopping him. In fact, the prosecutors said, the president and his lawyers would not necessarily even know that Mueller had obtained them.
“It shows the chaos around Washington that nobody has really started to talk about this yet,” said a Justice Department lawyer who deals with tax fraud prosecutions, speaking on condition of anonymity since he is not authorized to speak to reporters. “But finally, I think, someone is going to get their hands on Donald Trump’s tax returns. And that man is Robert Mueller.”
Notably, this does not necessarily mean that the public would ever see the returns. If Mueller obtained them, prosecutors said, there would be no obvious way for him to release them unless he needed them as evidence at trial against Trump associates or, possibly, if Congress sought them for an impeachment trial of the president. But the transfer of the documents from the IRS would still be significant historically and otherwise—and could strike fear in the White House. It would be the first known instance in which anyone outside Trump’s immediate family and tightly knit circle of business associates and accountants had the chance to review what is likely to be a small mountain of the president’s personal tax records dating back decades. (In recent months, the New York Times, investigative journalist David Cay Johnston and MSNBC host Rachel Maddow have obtained portions of Trump’s returns from two specific years—1995 and 2005—that documented large losses and deductions from real estate transactions and offered evidence of clever accounting practices, not wrongdoing.)
A broadly worded provision of the Internal Revenue Code gives Mueller, who acts with the authority of the Justice Department in his new post, the ability to obtain the returns from the IRS if he can demonstrate to a federal judge that there is “reasonable cause to believe, based upon information believed to be reliable, that a specific criminal act has been committed” and that the returns “may be relevant” to the investigation. Under the law, there is no requirement that the subject of the investigation—in this case, Trump—even be notified of the court order to IRS. The move does not require a formal subpoena or the action of a grand jury; veteran federal prosecutors said it could all take place in a matter of hours.
A handful of legal scholars and former federal prosecutors I interviewed say it is too early to determine whether Mueller will seek the tax records. But they say it would not be at all surprising if he does. There have been a swirl of allegations about questionable financial ties between the Trump Organization and Russian businessmen and banks close to Russian President Vladimir Putin, including Russian oligarchs who have made major investments in Trump properties in the United States and overseas. Trump’s two adult sons have both been quoted as saying that Russian investments represent a lopsided share of their revenues (they later denied the quotations or suggested they had been taken out of context). Trump’s first national security adviser, Lieutenant General Michael Flynn, has cited his Fifth Amendment right against self-incrimination in refusing to testify before Congress to discuss his own contacts with the Russian ambassador to Washington during the presidential transition period.
By law, federal tax returns are considered highly confidential and can be released by the IRS to the Justice Department in criminal investigations only after prosecutors prove that they could be essential evidence of a crime. The strict confidentiality rules were designed, in part, to prevent abuses of the powers of the IRS, which by virtue of its responsibilities has some of the government’s most detailed information about the business activities and personal finances of individual Americans. In articles of impeachment drawn up against President Richard Nixon in 1974, Nixon was accused of using the IRS to punish his political enemies.
David Sklansky, a Stanford University law professor who worked for years as a Justice Department prosecutor in Los Angeles, says a request for the tax returns might be an obvious step for Mueller to take. “I’m reluctant to speculate about what will happen, but Mueller can apply for an order for tax returns, just like any U.S. attorney could, if he concludes there is reasonable cause to believe a crime has been committed,” Sklansky says. “Everything we know about Mueller suggests he isn’t likely to make an application like this unless he has good grounds for it.”
Samuel Buell, a law professor at Duke University and former federal prosecutor who led the Justice Department’s prosecution of the Enron Corp, says he is convinced that if Mueller believed he needed the returns, he would seek them—and that a judge would likely approve the order without delay, given the respect that the former FBI director commands in Washington. “It’s hard to imagine an individual connected with federal law enforcement still alive in the United States with his stature,” Buell says.
The official who might be left in the most awkward position, Buell suggested, is Deputy Attorney General Rod Rosenstein, a career Justice Department official who appointed Mueller as special counsel earlier this month, in the wake of Trump’s firing of FBI Director James Comey, purportedly on Rosenstein’s recommendation. Mueller’s appointment was left to Rosenstein after Attorney General Jeff Sessions, a close Trump adviser during the campaign, recused himself from involvement in the Trump-Russia investigation. Under the 1999 Justice Department regulations used to name Mueller, Rosenstein is, nominally, Mueller’s supervisor, which means Rosenstein could try to overturn any significant decision made by Mueller, including a decision to seek the tax returns.The regulations bar Rosenstein from “day-to-day supervision” of the special prosecutor’s investigation, though he can intervene if Mueller takes an action that is “so inappropriate or unwarranted” that it should be blocked. The language is subjective, however, and it has never been tested in detail in court. It’s unclear whether Mueller would be compelled to notify Rosenstein in advance that he was seeking Trump’s tax returns. It’s also unclear what grounds Rosenstein could use to suggest that it was improper for Mueller to obtain them.
Buell says there are no clear-cut answers to many of those questions, which is part of “what is so fascinating about this situation.” Whatever happens, he says, he is convinced that Rosenstein and Mueller will take every precaution, given the implications of reviewing a president’s undisclosed tax returns and opening his entire business career and personal finances to scrutiny. “If you’re Robert Mueller and you’re running an investigation into the Trump administration and the White House’s potential ties with Russia, this is a situation in which you’re going to dot every single ‘i’ and cross every single ‘t,’” Buell says. “You want the record to be impeccable.”