Justice Department Argues that Congress Can't Get Trump's Tax Returns

Steven D. Schwinn, John Marshall Law School

The Office of Legal Counsel late yesterday issued an opinion giving its reasons why the Treasury Department doesn't have to comply with House Ways and Means Committee Chair Richard Neal's request, authorized by federal law, for President Trump's tax returns. We last posted on the controversy here.

The opinion is the culmination of breathtaking efforts by the Trump Administration to protect President Trump's tax returns from the Committee. Why breathtaking? Because federal law says that Treasury "shall furnish" (as in must furnish) the returns upon the request of the Committee Chair.

26 U.S.C. Sec. 6103 says that Treasury "shall furnish" tax-return information "[u]pon written request from the chairman of the Committee on Ways and Means of the House of Representatives." Chair Neal issued the requisite written request, stating that he sought the returns in order to investigate how the IRS audits presidents' tax returns. So far, Treasury declined to turn them over, saying that Chair Neal's request lacks a "legitimate legislative purpose," and that the Office of Legal Counsel would soon elaborate. Yesterday's opinion is that elaboration.

OLC's opinion riffs on Treasury's well worn claim--that Neal's request for the returns doesn't serve a "legitimate legislative purpose," and therefore Treasury can ignore the mandatory language (quoted above) in federal law.

In short, the opinion says that while Chair Neal claimed that he sought the returns to investigate how the IRS conducts audits of presidents (a legitimate legislative purpose), Chair Neal's real reason for requesting the returns is to release them to the public--and that's not a legitimate legislative purpose. The opinion draws on statements by Neal and other Democrats in the prior Congress suggesting that they'd like to publicize President Trump's tax returns when they gain a majority in the House. The memo says that this creates a mismatch between Chair Neal's stated reason for requesting the returns (to investigate how the IRS conducts audits) and his real reason (simply to publicize the President's returns).

The opinion cites several reasons why OLC believes that Chair Neal's stated reasons aren't his real reasons. First, OLC says that Chair Neal didn't also request other information, like IRS audit procedures. Next, it says that Chair Neal requested six years of the President's returns, even though "only the last two years correspond to his time in office." Third, OLC argues that the request focuses on just one taxpayer, President Trump, and not other Presidents and Vice-Presidents. OLC also notes that "the Chairman's request appeared to be 'perfectly tailored' to accomplish the Chairman's long-standing and avowed goal, namely 'to obtain and expose the President's tax returns.'"

Given that the courts are quite deferential to Congress in determining the scope of its own investigation authority, you might wonder where the administration gets off second-guessing Congress's motives. That is: Why does the administration think it can be less deferential to Congress regarding Congress's reasons for conducting an investigation? Here's part of the reason:

Allowing a congressional committee to dictate when Treasury must keep tax information confidential and when it must disclose such information would impermissibly intrude on executive power by ceding control to the Committee over ensuring that section 6103 is implemented in a manner consistent with the constitutional limitations.

Here's the rest:

Separated from the democratic process, the federal courts are not well equipped to second-guess the action of the political branches by close scrutiny of their motivations. . . .

These same limitations do not apply to the Executive Branch, which operates as a politically accountable check on the Legislative Branch. The Founders separated the President from the Congress, giving him "a separate political consistency, to which he alone was responsible," and "the means to resist legislative encroachment" upon his duty to executive the laws. The head of the Executive Branch, who is elected separately from Congress, ultimately must answer to the people for the manner in which he exercises his authority. The separation of powers would be dramatically impaired were the Executive required to implement the laws by accepting the legitimacy of any reason proffered by Congress, even in the face of clear evidence to the contrary. In order to prevent the "special danger . . . of congressional usurpation of Executive Branch functions," we believe that Treasury must determine, for itself, whether the Committee's stated reason reflects its true one or is merely a pretext.

Next step: Look for the Committee to seek to enforce Chair Neal's request in court.