White collar criminologist Bill Black explains how the administration’s stance on Trump’’ taxes is illegal and what the possible consequences could be—or should be
MARC STEINER Welcome to The Real News Network. I’m Marc Steiner. Great to have you all with us. So here we go. Congress wants Trump’s tax returns. House Ways and Means Committee Chairman Richard Neal requested them all, or six specific things, but then Trump’s Secretary of the Treasury, Steven Mnuchin, sent this letter in response. As he’s saying, no deal. You’re not going to get that from the IRS. The IRS, of course, now being run by Charles Rettig, who is one of the nation’s leading attorneys for people some people might call “tax cheats,” will not turn over Trump’s tax returns, writing that the committee’s request is unprecedented, is constitutionally questionable, and may have lasting negative effects for taxpayers countrywide. Yet, the 1924 Anti-Corruption Act says that Congress can ask for anyone’s tax returns at any time. Now this may go immediately to the Supreme Court or wind its way up to the Supreme Court. We don’t know what that means, so what gives here? Well our guest, who has been a financial regulator and is a Professor of Economics and Law at the University of Missouri- Kansas City, should know something about all this and can shed some light. Of course, we’re talking about Bill Black. Good to have you with us, Bill. Welcome back.
BILL BLACK Thank you.
MARC STEINER I should also say the title of his book because I love the title of this book, The Best Way To Rob A Bank Is To Own One. That is one of the best titles in American history, I think. So let me just start with this. So both the chairman of the committee in trying to get some tax returns from Trump, and Secretary Mnuchin, talk about Section 6103—both using that as a defense why they should get the tax returns legally and the secretary saying, no you shouldn’t have these tax returns because this is politicized, and you don’t have a legitimate reason. So what is this Section 6103, and what does it mean?
BILL BLACK Well, it means that Democrats win, is the short answer. I was also litigation director of a major federal agency, you know, and I’m a law prof as well. So, what it says in the statute is while—it isn’t all of Congress that can request. It’s the key committee chairs in the House and the Senate. This is the appropriate one in the House. So this is one of the consequences of the Democrats getting control of the House, that they’re now in a position to make this request. And while the word I’m using is request, the statute is mandatory, it’s not discretionary. It says when you receive this request, you shall provide those documents to the committee chair. So the Democrats have a clean winner. What’s the origins of the statute? The origins of the statute are in the Teapot Dome Scandal. And so, in history there used to be a debate about the most corrupt administration in the United States, whether it was the Grant administration or the Harding administration.
MARC STEINER Right.
BILL BLACK The Harding administration is what brought us the Teapot Dome Scandal. Teapot Dome was petroleum reserves. These were insider sales to situations where the Secretary of the Interior, the guy granting the oil leases and gas leases, was secretly on the payroll getting kickbacks. So it’s just blatant corruption and he was the—trivia. The first sitting cabinet-level secretary of an agency to go to prison, which he richly deserved. Okay. So there’s no debate anymore between what—
MARC STEINER And Mellon, by the way, just a digression. And Andrew Mellon, the financier and financial tycoon of the day was Secretary of the Treasury. We should add that as well, right?
BILL BLACK Yeah. It was, again, another gang of thieves. Anyway, that used to be the historical debate: who is most corrupt—Harding, Trump? I’m sorry, Harding and Grant. And obviously, the answer is Trump—
MARC STEINER [laughs].
BILL BLACK Is the most corrupt and has his own cabinet, a band of thieves. Okay, so they desperately, of course, don’t want to give up these tax returns, just as Trump has desperately not wanted to give up the tax returns because the tax returns are every financial investigator’s greatest joy in life. They would reveal a ton of information that Trump is desperate to avoid criminal investigators having. And while we had assumed that the Mueller investigation really dug into his taxes, the indications now are probably that actually didn’t occur, so you can see why Trump would be particularly worried about it. Now, here’s the real kicker.
MARC STEINER Okay.
BILL BLACK Mnuchin says that he’s refusing on the basis of legal advice from the Department of Justice.
MARC STEINER I was going to ask you about that. Yes, right. Please explain that to us.
BILL BLACK So we don’t know exactly what Mnuchin means when he says, he’s relying on the Department of Justice advice, because he doesn’t quote the advice, and because indeed he indicates that the Department of Justice hasn’t finalized that advice. But he’s gonna say no anyway before he gets anything that definitive from the Department of Justice. Here’s the kicker. The Department of Justice has no legal basis for saying no. So a) we already knew the Department of Justice under Barr was not representing the United States of America anymore. It’s representing Donald Trump against the people of the United States. But second, he’s going to have to really do violence to the law and he’s going to have to do violence to the law in a way that really can come back and bite the Department of Justice in a bunch of different cases because he’s going to have to wear all kinds of statutes we use in the federal government. And I was a Department of Justice lawyer, as well and we say, hey when it says shall, it really means shall and the following thing must happen, and you didn’t do it, and therefore, you have the following consequences. Now, the Department of Justice is going to have to say, shall only sometimes means shall.
MARC STEINER [laughs] Well, I’m curious what you think. What could the Justice Department have told him? I mean, what could— if you were on the other side of this, what possibly could be the advice they gave him about why they could fight this legally?
BILL BLACK Oh, I don’t think they did give advice. [laughs]
MARC STEINER [laughs] You think they made it all up?
BILL BLACK No. Yeah. This is a sham. And what they’re going to therefore do, I predict, is say, we need to look beyond what the House of Representatives, in particular the committee chair, says they’re doing and define what we think they’re really doing is.
MARC STEINER Is that a legal term? [laughs]
BILL BLACK Yes. You know, entrails, right? And they’re going to burn these entrails and they’re going to say, we think they’re really perfidious Democrats, that they’re really on a partisan witch hunt, and anytime we think they’re on a perfidious witch hunt, we just say no. So it brings motive in where it is not brought into the law. And if you bring motive in, then all those nasty things that random members of the legislature say, you know, like their racist rants and such.
MARC STEINER Right.
BILL BLACK Well then, their statutes could be struck down as having racial animus. Usually, that racist rant by a particular member is disregarded in judicial review. And indeed, that was critical to Trump winning in the Supreme Court, given all his racist statements about Muslims. [inaudible] say nah, nah, you know, and there they had an enormous record as to what was really going on and said, no, no, no, no, no; you can’t look into the minds and motives of people. The Justice Department is about to say, yes you can. And you can say, I don’t think they’re good motives and therefore, the actions are unlawful, and I won’t comply. And that’s really super dangerous to the United States government once it’s put back under honest leadership.
MARC STEINER So in the letter that Steve Mnuchin was—I always want to call him “munchkin.”
BILL BLACK Steven. He doesn’t like Steve.
MARC STEINER Steven. I’m sorry. Steven Mnuchin, and not munchkin, Mnuchin. He writes, “as you have recognized, the committee’s request is unprecedented, and it presents serious constitutional questions, the resolutions of which may have lasting consequences for all taxpayers.” And says, he consulted the Department of Justice and that “the committee’s statutory authority under Section 6103(f) is bounded by Congress’s authority. Under the Constitution, the Supreme Court has held, the Constitution requires that congressional information demands must reasonably serve a legitimate legislative purpose.” So that’s what he writes in his letter, correct?
BILL BLACK Right. Only the last quoted sentence from the Supreme Court is not a lie.
MARC STEINER [laughs] But I don’t understand. All right. As Joe Average Citizen reads this letter, it seems reasonable, people believe—
BILL BLACK [laughs].
MARC STEINER No. You know what I’m saying? I mean, people say it’s government overreach, so I’m curious how you think this could—What could be the argument if they get before the Supreme Court, that could allow even the conservative Justices of the Supreme Court to go along with the administration?
BILL BLACK Okay. So it has to actually be flipped around because there is no reasonable argument that you can make in good faith on these facts. So, is Congress’s power unlimited? No, so Congress has to do things that are at least related to congressional function. Have the Democrats cited legitimate congressional functions in their request? Yes. Would they win under existing precedent? A hundred percent of the time. For Trump to win in front of the Supreme Court even, requires a) that Trump and Barr ignore the law and reverse it. And then, that the Supreme Court junk law and say, yes, we too are now Trump uber alles types and we will read anything into the Constitution necessary for Trump to win. And if that’s it, then it’s basically game over on this phase of American democracy.
MARC STEINER So, one very quick question. Pardon me. One very quick question here. Bill, if the chairman asked for six specific documents, and [David] Cay Johnston was interviewed in The Nation magazine. He said clearly, a) this means that they know exactly what they’re looking for or they wouldn’t just ask for six out of 500 documents when it comes to Trump’s businesses and tax returns. And two, that what he’s seen before, what happened in New York and other places, it’s clear to him that fraud has taken place. So could you talk to that just for a minute before we close out?
BILL BLACK Okay. Are you talking about David Cay Johnston?
MARC STEINER Yes, I am. That’s right. What did I say?
BILL BLACK I think you called him Charles.
MARC STEINER I’m sorry, then David. [laughs]
BILL BLACK So a) David Cay Johnston is a Pulitzer Prize winning, former Wall Street Journal columnist, expert on taxes, so I’m with him.
MARC STEINER Right. [laughs] It’ll be interesting to see how this unwinds. I mean, to me, finally it’s just kind of always mind-blowing about how this administration can keep bypassing the law and turning it on its head. How long can this go on?
BILL BLACK Well let me give you a sense, as a former Department of Justice lawyer.
MARC STEINER Please.
BILL BLACK First, that letter from Mueller— that’s astonishing. You just don’t do that. You do, in fact, pick up the phone. So you only do that when you have zero trust in the Attorney General of the United States of America. Wow. And second, now there’s this letter from former prosecutors, which at the time, we’re talking is up to like 400 signatories, and it is simply correct. If you took the facts of the Mueller report and applied them to anybody other than the president of the United States—no ifs, ands, or buts, you indict for obstruction of justice and it’s 10-count indictment and it’s a clean winner. And remember, the only reason they’re not indicting is because the president’s own legal shop, the Office of Legal Counsel, has written these incredible opinions saying, no, presidents are immune while they’re in office. They can commit crimes with impunity, other than impeachment. The justice system can’t actually reach them. Now, that’s absurd and here’s a thought experiment— what if Trump really made good on his boast that he could go out in Fifth Avenue and murder a random passerby?
MARC STEINER I remember that.
BILL BLACK Is anyone seriously going to say that the Department of Justice would say, well, we’ve got this OLC opinion; I guess we can’t do anything?
MARC STEINER Well, Bill Black, on that note—we’ll have to pick up on this one again as soon as we see how this unfolds. This is just fascinating to me. Bill Black, thank you so much once again for your thoughts and work. Good to have you with us.
BILL BLACK Thank you.
MARC STEINER And I’m Marc Steiner here for The Real News Network. Thank you all so much for being with us. Take care.