Ways and Means Committee's Request for the Former President's Tax Returns and Related Tax Information Pursuant to 26 U.S.C. § 6103(f)(1) ( 2021 )

(Slip Opinion)
Ways and Means Committee’s Request for the Former
President’s Tax Returns and Related Tax Information
Pursuant to 26 U.S.C. § 6103(f )(1)
Section 6103(f )(1) of title 26, U.S. Code, vests the congressional tax committees with a
broad right to receive tax information from the Department of the Treasury. It embod-
ies a long-standing judgment of the political branches that the tax committees are
uniquely suited to receive such information. The committees, however, cannot compel
the Executive Branch to disclose such information without satisfying the constitutional
requirement that the information could serve a legitimate legislative purpose.
In assessing whether requested information could serve a legitimate legislative purpose,
the Executive Branch must give due weight to Congress’s status as a co-equal branch
of government. Like courts, therefore, Executive Branch officials must apply a pre-
sumption that Legislative Branch officials act in good faith and in furtherance of legit-
imate objectives.
When one of the congressional tax committees requests tax information pursuant to
section 6103(f )(1), and has invoked facially valid reasons for its request, the Executive
Branch should conclude that the request lacks a legitimate legislative purpose only in
exceptional circumstances. The Chairman of the House Ways and Means Committee
has invoked sufficient reasons for requesting the former President’s tax information.
Under section 6103(f )(1), Treasury must furnish the information to the Committee.
July 30, 2021
MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
DEPARTMENT OF THE TREASURY
The Internal Revenue Code requires the Department of the Treasury
(“Treasury”) and the Internal Revenue Service (“IRS”) to keep tax returns
and related information confidential, 26 U.S.C. § 6103(a), except in thir-
teen specified circumstances, see id. § 6103(c)–(o). Section 6103(f )(1), at
issue here, provides that the Secretary of the Treasury (“Secretary”) “shall
furnish” such information to any of the three congressional tax commit-
tees—the Committee on Ways and Means of the House of Representa-
tives, the Committee on Finance of the Senate, or the Joint Committee on
Taxation—“[u]pon written request from the chairman” of one of those
committees. In April 2019, Representative Richard Neal, the Chairman of
the House Committee on Ways and Means (“Committee”), cited section
6103(f ) in a written request to the IRS to provide the Committee with the
preceding six years of then-President Donald Trump’s individual tax
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45 Op. O.L.C. __ (July 30, 2021)
returns, as well as the tax returns of eight Trump-related businesses. See
Letter for Charles P. Rettig, Commissioner, Internal Revenue Service,
from Richard E. Neal, Chairman, Committee on Ways and Means, U.S.
House of Representatives at 1–2 (Apr. 3, 2019) (“April 2019 Request”).
Chairman Neal also sought IRS audit histories and work-papers associated
with each return, explaining that the Committee was “considering legisla-
tive proposals and conducting oversight related to our Federal tax laws,
including . . . the extent to which the IRS audits and enforces the Federal
tax laws against a President.” Id.
Treasury sought this Office’s advice as to whether it was permitted to
comply with the April 2019 Request in light of Treasury’s determination
that the Committee’s asserted legislative purpose for requesting the tax
records was a “pretext” and that the Committee’s “true purpose” was to
publicly disclose the President’s tax returns. See Letter for Steven A.
Engel, Assistant Attorney General, Office of Legal Counsel, from Brent J.
McIntosh, General Counsel, Department of the Treasury at 5 (May 2,
2019). This Office responded that Treasury’s determination about pretext
was “reasonabl[e]” and that, because the Committee lacked a legitimate
legislative purpose, section 6103(a) barred disclosure of the information
to the Committee notwithstanding the mandate of section 6103(f )(1). See
Letter for Brent J. McIntosh, General Counsel, Department of the Treas-
ury, from Steven A. Engel, Assistant Attorney General, Office of Legal
Counsel at 1 (May 6, 2019). Treasury then denied the April 2019 Request,
which prompted the Committee to issue subpoenas for the requested
documents to the Secretary and the Commissioner of the IRS. See Letter
for Steven T. Mnuchin, Secretary of the Treasury, et al., from Richard E.
Neal, Chairman, Committee on Ways and Means, U.S. House of Repre-
sentatives at 3 & encl. (May 10, 2019).
The following month, this Office provided Treasury a more detailed
opinion explaining our earlier advice. Congressional Committee’s Request
for the President’s Tax Returns Under 26 U.S.C. § 6103(f ), 43 Op. O.L.C.
__ (June 13, 2019) (“2019 Opinion”). The 2019 Opinion reasoned that
Congress lacks constitutional authority to compel the Executive Branch to
provide information to a congressional committee, even when a statute
vests the committee with a right to the information, unless the information
would serve a legitimate legislative purpose. Id. at *17–19. It concluded
that Treasury’s assessment of the Committee’s “actual purpose” was not
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Ways and Means Committee’s Request for the Former President’s Tax Returns
only “reasonabl[e]” but “correct[].” Id. at *31. Because the Committee
lacked a legitimate legislative purpose for requesting the tax information,
the 2019 Opinion advised that the April 2019 Request was invalid and
that section 6103(a) barred Treasury from complying with the request. Id.On June 16, 2021—after the Committee had sued to enforce its sub-
poenas, 1 a new Congress had assembled, and President Trump had left
office—Chairman Neal sent Treasury a new written request under section
6103(f )(1). See Letter for Janet L. Yellen, Secretary of the Treasury, et
al., from Richard E. Neal, Chairman, Committee on Ways and Means,
U.S. House of Representatives at 1 (June 16, 2021) (“June 2021 Re-
quest”). The Committee’s June 2021 Request seeks the same categories of
information as the April 2019 Request, but now for the tax years 2015
through 2020. See id. at 6–7. The June 2021 Request reiterates and elabo-
rates upon the Committee’s principal interest in the information—namely,
evaluating “the extent to which the IRS audits and enforces the Federal
tax laws against a President.” Id. at 1. It also identifies an interest in
determining whether “former President Trump’s tax returns could reveal
hidden business entanglements raising tax law and other issues, including
conflicts of interest, affecting proper execution of the former President’s
responsibilities.” Id. at 4. It further states that “[a]n independent examina-
tion might also show foreign financial influences on former President
Trump that could inform relevant congressional legislation.” Id.You then asked for our views regarding “whether the Secretary must
furnish the requested returns and return information to the Committee.”
Letter for Dawn Johnsen, Acting Assistant Attorney General, Office of
Legal Counsel, from Laurie Schaffer, Acting General Counsel, Depart-
ment of the Treasury at 1 (June 17, 2021). For the reasons set forth below,
we conclude that Treasury must furnish the information specified in the
June 2021 Request to the Committee.
The statute at issue here is unambiguous: “Upon written request” of the
chairman of one of the three congressional tax committees, the Secretary
“shall furnish” the requested tax information to the Committee. 26 U.S.C.
1See Compl., Comm. on Ways & Means v. Dep’t of the Treasury, No. 19-cv-1974
(D.D.C. July 2, 2019), ECF No. 1. The case has been stayed since March 2020. See Order,
Comm. on Ways & Means v. Dep’t of the Treasury, No. 19-cv-1974 (D.D.C. Mar. 20,
2020).
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45 Op. O.L.C. __ (July 30, 2021)
§ 6103(f )(1). As the 2019 Opinion recognized, this statutory directive
does not exempt the June 2021 Request from the constitutional require-
ment that congressional demands for information must serve a legitimate
legislative purpose. 2019 Opinion at *17–19. The 2019 Opinion went
astray, however, in suggesting that the Executive Branch should closely
scrutinize the Committee’s stated justifications for its requests in a man-
ner that failed to accord the respect and deference due a coordinate branch
of government. Id. at *24–26. The 2019 Opinion also failed to give due
weight to the fact that the Committee was acting pursuant to a carefully
crafted statute that reflects a judgment by the political branches, going
back nearly a century, that the congressional tax committees should have
special access to tax information given their roles in overseeing the na-
tional tax system. Particularly in light of this special statutory authority,
Treasury should conclude that a facially valid tax committee request lacks
a legitimate legislative purpose only in exceptional circumstances.
Applying the proper degree of deference due the Committee, we be-
lieve that there is ample basis to conclude that its June 2021 Request for
former President Trump’s tax information would further the Committee’s
principal stated objective of assessing the IRS’s presidential audit pro-
gram—a plainly legitimate area for congressional inquiry and possible
legislation. The Chairman’s additional stated objectives for reviewing that
tax information are also legitimate, and the Committee has authority to
seek the records for those reasons as well. Even if some individual mem-
bers of Congress hope to see information from the former President’s tax
returns disclosed on the public record merely “for the sake of exposure,”
Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032 (2020) (internal quota-
tion marks omitted), that would not invalidate the legitimate objectives
that the Committee’s receipt of the information in question could serve.
I.
A.
From the time Congress first enacted an income tax during the Civil
War, the political branches have frequently debated whether and to what
extent income tax information should be available to the public and to
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Ways and Means Committee’s Request for the Former President’s Tax Returns
various government actors. 2 Beginning in 1913, and continuing for more
than fifty years thereafter, Congress adopted a basic framework in which
the law declared income tax returns to be “public records,” but they were
not as a practical matter freely available for public perusal. With certain
discrete exceptions, the IRS (or its predecessor) could disclose such
reports or permit their inspection only by order of the President and in
accord with rules prescribed by the Secretary. See, e.g., Revenue Act of
1913, ch. 16, § 2, 38 Stat. 114, 177; see also Report on Administrative
Procedures of the Internal Revenue Service to the Administrative Confer-
ence of the United States, S. Doc. No. 94-266, at 842–53 (1975) (“1975
ACUS Report”).
In the Revenue Act of 1924, however, the political branches decided to
afford the congressional tax committees a special role. See id. ch. 234,
§ 257(a), 43 Stat. 253, 293. One impetus for this change was frustration
within Congress that the Coolidge Administration had stymied congres-
sional access to tax records of federal officials suspected of involvement
in the Teapot Dome scandal as well as tax records relevant to a Senate
investigation of the Bureau of Internal Revenue (the predecessor to the
IRS). See George K. Yin, Preventing Congressional Violations of Tax-
payer Privacy, 69 Tax Law. 103, 120–24 (2015). Many members of
Congress supported affording at least some congressional committees
access to tax returns, but there was debate about whether such access
should be provided to all committees or only to some (and, if the latter, to
which ones). 3 Congress chose to single out the tax committees. It eventu-
ally passed, and President Coolidge signed, a law that included a new
provision guaranteeing that the House Ways and Means Committee, the
Senate Finance Committee, and a “special committee” of the Senate or
2 See Report on Administrative Procedures of the Internal Revenue Service to the Ad-
ministrative Conference of the United States, S. Doc. No. 94-266, at 835–43 (1975); see
also George K. Yin, Preventing Congressional Violations of Taxpayer Privacy, 69 Tax
Law. 103, 154–60, app. B (2015) (offering a detailed account of income tax confidentiali-
ty debates and laws between 1862 and 1921).
3 See, e.g., 65 Cong. Rec. 9405 (1924) (remarks of Sen. Norris) (lamenting that mem-
bers of the tax committees “are not the only pebbles on the legislative beach” and that
other members “are equally interested in good legislation . . . but they are all denied
access to these secret records of big incomes”); Yin, Preventing Congressional Violations
of Taxpayer Privacy, 96 Tax Law. at 123–24 (recounting other objections to the special
treatment of the tax committees).
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45 Op. O.L.C. __ (July 30, 2021)
House “shall have the right to call on the Secretary of the Treasury for,
and it shall be his duty to furnish, any data of any character contained in
or shown by the returns . . . that may be required by the committee.”
Revenue Act of 1924, § 257(a), 43 Stat. at 293. 4 All other congressional
committees—like everyone else—had to continue to rely upon the discre-
tionary approval of the President and the Secretary, or the assistance of
the tax committees, in order to inspect tax returns. See id. 5
Two years later, Congress created the Joint Committee on Internal
Revenue Taxation (now known as the Joint Committee on Taxation) and
gave it the same right of access to returns enjoyed by the Ways and Means
Committee and the Finance Committee. See Revenue Act of 1926, ch. 27,
§ 1203(a), (d), 44 Stat. 91, 127–28. The special authority afforded these
three congressional tax committees (and other committees that received
special authorization by a vote of a chamber) remained a fixture of federal
tax law over the next half-century. Eventually, the Internal Revenue Code
of 1954 provided that whenever any of the tax committees requests tax
returns, the Secretary of the Treasury “shall furnish such committee
sitting in executive session with any data of any character contained in or
shown by any return.” Id. ch. 736, § 6103(d)(1)(A), (d)(2), 68A Stat. 1,
754–55. These tax committees were authorized to inspect returns directly
4 The 1924 statute also provided for the open publication of the amount of each per-
son’s income tax. See Revenue Act of 1924, § 257(b), 43 Stat. at 293; see also United
States v. Dickey, 268 U.S. 378 (1925) (examining the strange distinction between the
publicly disclosed tax amounts and the confidential tax returns under the 1924 statute).
That provision engendered controversy and was omitted from the 1926 version of the
statute. See Yin, Congressional Violations of Taxpayer Privacy, 96 Tax Law. at 125 &
n.114.
5 President Coolidge issued a signing statement complaining that the provision did not
restrict committees from publishing tax returns in open committee or on the floor of
Congress. See 118 Com. & Fin. Chron. 2739, 2775 (1924) (reproducing the signing
statement). Congress addressed these concerns to some extent in amendments it enacted
in 1926, by providing that special committees (i.e., not the standing tax committees) could
inspect returns only if they were first authorized to do so by a resolution of the House or
Senate (or a joint resolution), see Revenue Act of 1926, ch. 27, § 257(b)(1), 44 Stat. 9, 51,
and by further providing that committees had to be sitting in executive (i.e., not public)
session in order to receive the returns, id. Congress declined, however, to prohibit author-
ized committees from making public “[a]ny relevant or useful information thus obtained.”
Id. § 257(b)(3), 44 Stat. at 51. To the contrary, it permitted them to do so by submitting
such “relevant or useful” information to the House or the Senate (or both). Id.
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Ways and Means Committee’s Request for the Former President’s Tax Returns
or through designated examiners or agents, and they were empowered to
submit “[a]ny relevant or useful information thus obtained” to the Senate,
the House, or both, id. § 6103(d)(1)(B)–(C), 68A Stat. at 755—a submis-
sion that would effectively make the information public. It remained the
case that other congressional committees had to go to much greater
lengths to inspect or obtain returns and were not permitted to publicize
them. 6
B.
In the mid-1970s, substantial concerns arose about “whether the extent
of actual and potential disclosure of returns and return information to
other Federal and State agencies for non-tax purposes breached a reasona-
ble expectation of privacy on the part of the American citizen with respect
to such information.” Staff of the Joint Committee on Taxation, General
Explanation of the Tax Reform Act of 1976, JCS-33-76, at 314 (1976)
(“JCT General Explanation”). Because the IRS “probably has more in-
formation about more people than any other agency in this country,”
“almost every other agency that has a need for information about U.S.
citizens sought it from the IRS.” Id. And the President and the Secretary
increasingly had been sharing such identifiable tax information within the
Executive Branch, including within the White House itself. See id.; see
also Yin, Preventing Congressional Violations of Taxpayer Privacy, 69
Tax Law. at 130 (recounting that Congress was especially troubled by
President Nixon’s orders authorizing the Department of Agriculture to
inspect the tax returns of all farmers). 7
Congress responded to these concerns in the Tax Reform Act of 1976,
which made significant reforms to the Internal Revenue Code. See Pub. L.
No. 94-455, 90 Stat. 1520. The 1976 statute included measures to safe-
guard taxpayer confidentiality—in particular, to limit the Executive
Branch’s own access to and use of identifiable tax returns. Id. § 1202, 90
6 See Staff of the Joint Committee on Taxation, General Explanation of the Tax Re-
form Act of 1976, JCS-33-76, at 316–18 (Dec. 29, 1976) (summarizing the pre-1976 rules
with respect to various committees); S. Rep. No. 94-938, at 319–20 (1976) (same); see
also 1975 ACUS Report at 959–60, 966–68, 1116 nn. 551 & 553 (describing requirements
of Executive Branch regulations that governed requests of non-tax committees).
7 See also 122 Cong. Rec. 24,013 (1976) (statement of Sen. Weicker) (suggesting that
the IRS was acting like a “lending library” to the rest of the Executive Branch).
7
45 Op. O.L.C. __ (July 30, 2021)
Stat. at 1667 (amending 26 U.S.C. § 6103). “Congress reviewed each of
the areas in which returns and return information were subject to disclo-
sure,” and with respect to each of them, “strove to balance the particular
office or agency’s need for the information involved with the citizen’s
right to privacy and the related impact of the disclosure upon the continu-
ation of compliance with our country’s voluntary tax assessment system.”
JCT General Explanation at 315. The result was the version of section
6103 that (in pertinent part) remains in force today.
Section 6103(a) pronounces that “[r]eturns” and “return information”
(collectively, “tax information”) “shall be confidential, . . . except as
authorized by this title.” 26 U.S.C. § 6103(a). 8 Government officials with
access to tax information thus may not disseminate it without authoriza-
tion. A willful unauthorized disclosure is a felony, see id. § 7213(a)(1)–
(2), and any government official or other specified person who willfully
inspects tax information without authorization commits a misdemeanor,
id. § 7213A. The law also provides for civil liability for certain impermis-
sible disclosures. Id. § 7431(a).
In sections 6103(c) through (o), however, Congress established “thir-
teen tightly drawn categories of exceptions” to the general confidentiality
rule. Elec. Privacy Info. Ctr. v. IRS, 910 F.3d 1232, 1237 (D.C. Cir.
2018). In these “limited situations delineated in the newly amended sec-
tion 6103,” Congress “determined that disclosure was warranted.” JCT
General Explanation at 315. One of the exceptions, relevant here, is found
in section 6103(f )(1). Like its predecessors since 1924, this provision
singles out the tax committees for special treatment and enhanced access
to tax information. See JCT General Explanation at 317–18; S. Rep. No.
8 Section 6103 defines “return[s]” and “return information” broadly. Returns in-
clude “any tax or information return, declaration of estimated tax, or claim for refund
required by, or provided for or permitted under, the provisions of this title which is
filed with the Secretary . . . , and any amendment or supplement thereto.” 26 U.S.C.
§ 6103(b)(1). Return information includes, among other things, “a taxpayer’s identity,
the nature, source, or amount of his income, payments, receipts, deductions, exemp-
tions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies,
overassessments, or tax payments, whether the taxpayer’s return was, is being, or will
be examined or subject to other investigation or processing, or any other data, received
by, recorded by, prepared by, furnished to, or collected by the Secretary with respect
to a return.” Id. § 6103(b)(2)(A).
8
Ways and Means Committee’s Request for the Former President’s Tax Returns
94-938, at 320 (1976). 9 Section 6103(f )(1) provides that “[u]pon written
request from the chairman of the Committee on Ways and Means of the
House of Representatives, the chairman of the Committee on Finance of
the Senate, or the chairman of the Joint Committee on Taxation, the
Secretary shall furnish such committee with any return or return infor-
mation specified in such request.” See also id. § 6103(f )(4) (the Commit-
tee or its designated examiners or agents “shall have the authority . . . to
inspect returns and return information at such time and in such manner” as
the chairman may determine). It further provides 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 other-
wise consents in writing to such disclosure.” Id. § 6103(f )(1); see also id.
§ 6103(f )(2) (treating the Chief of Staff of the Joint Committee on Taxa-
tion similarly to the chairmen of the House and Senate tax committees).
One notable change from earlier iterations of the law is that tax com-
mittee requests for tax information must be submitted in writing by the
chairman of one of the committees (or by the Chief of Staff of the Joint
Committee on Taxation). Compare 26 U.S.C. § 6103(f )(1) (2018), with
26 U.S.C. § 6103(d)(1) (1970). As this Office previously explained, the
“apparent purpose” of this requirement—that “the highest-ranking official
of a particular governmental unit [must] pass upon and approve any
request for disclosure,” and thereby stand behind it in an accountable
fashion—is “to ensure that disclosure is warranted.” Congressional
Access to Tax Returns Under 26 U.S.C. § 6103(f ), 1 Op. O.L.C. 85, 89
(1977). In other respects, though, section 6103(f )(1) continues the long-
standing practice of according the tax committees unique and especially
broad access to tax information.
The tax committees, for example, are the only congressional commit-
tees that need not obtain a resolution from the full House or Senate before
they request tax information. Compare 26 U.S.C. § 6103(f )(1) (concern-
ing the tax committees), with id. § 6103(f )(3) (addressing “[o]ther com-
mittees”). And, of special significance here, section 6103(f )(1) does not
require the tax committees to use the information they obtain for any
9 The 1976 statute prescribed rules for most non-tax committees, rather than leaving
them subject to executive regulation. See 26 U.S.C. § 6103(f )(3), (f )(4)(B).
9
45 Op. O.L.C. __ (July 30, 2021)
particular purpose nor to articulate the purpose for which they are seeking
the information. Indeed, apart from these committees, virtually no one—
not even the President 10—can request tax information about a non-
consenting taxpayer without regard to the purpose for the request. 11 Other
congressional committees, in particular, must secure a resolution from the
full House or Senate (or both) that authorizes the request for tax infor-
mation and that specifies the purpose for which it is to be sought and that
the information cannot reasonably be obtained from any other source. See
id. § 6103(f )(3). Moreover, section 6103(f )(4)(A) authorizes the tax
committees, and those committees alone, to submit the information they
receive “to the Senate or the House of Representatives, or to both,” with-
out any requirement that the House or Senate be sitting in closed execu-
tive session—which is, in effect, the power to put that information on the
public record. Compare id. § 6103(f )(4)(A), with id. § 6103(f )(4)(B)
(providing that, absent taxpayer consent, other committees can furnish
identifiable tax information to the Senate or the House “only when sitting
in closed executive session”). 12
10 See 26 U.S.C. § 6103(g)(1)(D) (providing that the President must state in writing
“the specific reason why [an] inspection or disclosure is requested” on his or her behalf).
11 See, e.g., 26 U.S.C. § 6103(d)(1) (permitting disclosure to state tax officials “for the
purpose of, and only to the extent necessary in, the administration of [state tax] laws”); id.§ 6103(h)(1) (allowing Treasury employees and officers to inspect or obtain tax infor-
mation only if their duties require it for tax administration); id. § 6103(h)(2), (h)(3)(B)
(permitting Department of Justice officials involved in a matter of tax administration to
examine and use tax information “solely” in connection with a grand jury or court pro-
ceeding in delineated circumstances, and generally to do so only pursuant to a request
from the Attorney General, the Deputy Attorney General, or an Assistant Attorney
General that “set[s] forth the need for the disclosure”).
12 The singular nature of the tax committees’ statutory right of access to tax infor-
mation is further underscored by comparing section 6103(f )(1) with the other statutory
exceptions to section 6103(a)’s general rule of taxpayer confidentiality. Although some of
those exceptions similarly require the Secretary to provide return information if particular
conditions are met, a number of them appear to afford the Secretary discretion about
whether to disclose tax information. See, e.g., 26 U.S.C. § 6103(h)(5) (“Upon written
request of the [Social Security Administration or Railroad Retirement Board], the Secre-
tary may disclose available return information from the master files of the Internal
Revenue Service” for the purpose of helping such agency carry out its tax-withholding
responsibilities) (emphasis added); see also, e.g., 26 U.S.C. § 6103(e)(11), (i)(3)(A)(i),
(i)(3)(B)(i), (i)(3)(C)(i), (i)(7)(A)(i), (k)(7), (k)(8)(A), (k)(9), (k)(10)(A), (k)(13)(A),
(k)(14)(A), (l)(3)(A), (l)(4), (l)(5) & (l)(18).
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Ways and Means Committee’s Request for the Former President’s Tax Returns
Since enactment of the 1976 statute, the tax committees have occasion-
ally relied upon section 6103(f )(1) to inspect and obtain tax returns and
(more frequently) information about the IRS’s treatment of tax returns. 13
You have advised us that, before 2019, Treasury had never before denied
such a section 6103(f )(1) request. 14 After it denied the Committee’s
request in 2019, Treasury explained to one Senator that “[t]his is unsur-
prising”: “there is no need for close review of most requests under section
6103(f ) because the purpose of the request is usually self-evident and
legitimate.” See Letter for Ron Wyden, Ranking Member, Committee on
Finance, U.S. Senate, from Justin W. Sok, Senior Advisor, Office of
Legislative Affairs, Department of the Treasury at 2 (July 17, 2019). 15
13 See Memorandum for Members of the Committee on Ways and Means, U.S. House
of Representatives, from Richard E. Neal, Chairman, Committee on Ways and Means,
U.S. House of Representatives, Re: Historical Use of Authority To Obtain Confidential
Tax Information at 3–5 (July 25, 2019) (enumerating cases over the preceding thirty years
in which the tax committees have requested and obtained from the IRS tax information).
You have informed us that “the IRS has indicated,” based upon “institutional memory and
paper records,” that “it has no reason to question the account in Chairman Neal’s memo-
randum.” E-mail for Martin Lederman & Gillian E. Metzger, Office of Legal Counsel,
from Laurie Schaffer, Department of the Treasury, Re: Request for Information (July 26,
2021, 9:03 PM). See also Letter for Ron Wyden, Ranking Member, Committee on Fi-
nance, U.S. Senate, from Justin W. Sok, Senior Advisor, Office of Legislative Affairs,
Department of the Treasury, att. A (July 17, 2019) (describing section 6103(f ) requests
found in IRS records from between 2005 and 2019).
14 See E-mail for Martin Lederman & Gillian E. Metzger, Office of Legal Counsel,
from Laurie Schaffer, Department of the Treasury, Re: Question regarding denial of a
section 6103(f ) request prior to 2019 (July 29, 2021, 7:19 PM); E-mail for Martin Le-
derman & Gillian E. Metzger, Office of Legal Counsel, from Brian Sonfield, Department
of the Treasury, Re: FW: Request for information concerning practice under Section
6103(f ) (July 28, 2021, 11:27 AM).
15 The IRS’s Internal Revenue Manual suggests that the IRS can request or even insist
upon a delay of congressional committee access to records in cases “under active investi-
gation.” I.R.M. § 11.3.4.4(13) (2020). It is not clear what the Manual means by a case
“under active investigation”—in particular, whether this phrase includes a case subject to
an ongoing audit. Nor is it clear what the statutory authority would be for the IRS to
refuse a tax committee request under section 6103(f )(1) where a “functional head”
concludes that disclosure would result in a “serious adverse effect on the administration
of the tax laws.” Id. You have informed us that, according to the IRS, it “routinely
communicates with committee staff when providing information, identifying information
that is particularly sensitive or that the IRS is concerned with disclosing for some reason
to ensure the recipients are sensitive to the concerns. Sometimes that results in the
11
45 Op. O.L.C. __ (July 30, 2021)
C.
In April 2019, citing “authority under Internal Revenue Code section
6103(f ),” Chairman Neal asked the IRS to provide the Committee then-
President Trump’s individual tax returns, as well as those of eight Trump-
related businesses, for each of the tax years 2013 through 2018. April
2019 Request at 1–2. He also requested certain records related to the IRS
audit histories and work-papers associated with each return. Id. Chairman
Neal offered the following explanation for the request:
The Committee on Ways and Means . . . has oversight and legisla-
tive authority over our Federal tax laws. With this authority comes a
responsibility to ensure that the Internal Revenue Service . . . is en-
forcing the laws in a fair and impartial manner.
Consistent with its authority, the Committee is considering legis-
lative proposals and conducting oversight related to our Federal tax
laws, including, but not limited to, the extent to which the IRS audits
and enforces the Federal tax laws against a President. Under the In-
ternal Revenue Manual, individual income tax returns of a President
are subject to mandatory examination, but this practice is IRS policy
and not codified in the Federal tax laws. It is necessary for the
Committee to determine the scope of any such examination and
whether it includes a review of underlying business activities re-
quired to be reported on the individual income tax return.
Id. at 1. 16
documents remaining in the building and authorized committee staff viewing it in the IRS
rather than it being delivered. Sometimes it results in the information being sent under a
separate transmittal and highlighted as very sensitive.” E-mail for Martin Lederman &
Gillian E. Metzger, Office of Legal Counsel, from Laurie Schaffer, Department of the
Treasury, Re: Request for Information (July 26, 2021, 9:03 PM).
16 Shortly after his April 2019 Request, Chairman Neal clarified in a follow-up letter
that it was “in furtherance of consideration by the Committee . . . of legislative proposals
and oversight related to our Federal tax laws, including, but not limited to, the extent to
which the IRS audits and enforces the Federal tax laws against a President.” Letter for
Charles P. Rettig, Commissioner, Internal Revenue Service, from Richard E. Neal,
Chairman, Committee on Ways and Means, U.S. House of Representatives at 1 (Apr. 13,
2019) (emphasis added). In support of a summary judgment motion in the subsequent
lawsuit, the Committee described additional legislative interests that the requested tax
12
Ways and Means Committee’s Request for the Former President’s Tax Returns
Treasury sought this Office’s advice about how to respond to the April
2019 Request. See Letter for Steven A. Engel, Assistant Attorney General,
Office of Legal Counsel, from Brent J. McIntosh, General Counsel, De-
partment of the Treasury at 1 (May 2, 2019). Specifically, Treasury asked:
(1) “Must the Committee demonstrate a legitimate legislative purpose,
consistent with constitutional limitations on the authority of Congress, to
support its use of 26 U.S.C. § 6103(f )?”; and (2) “Absent a legitimate
legislative purpose, does section 6103(a) bar disclosure to the Committee
of the requested tax returns and return information?” Id.To accommodate Treasury’s interest in expeditiously responding to the
Committee, this Office provided a letter opinion four days later, with
notice that a formal opinion would follow. Letter for Brent J. McIntosh,
General Counsel, Department of the Treasury, from Steven A. Engel,
Assistant Attorney General, Office of Legal Counsel at 1 (May 6, 2019).
That letter advised Treasury that “the Constitution requires the Committee
to demonstrate a legitimate legislative purpose” for a request under sec-
tion 6103(f ). Id. It further advised that, “based upon the totality of the
circumstances,” Treasury had “reasonably concluded that the Commit-
tee’s asserted legislative purpose is a pretext, and that the Committee
ha[d] requested the . . . information for the purpose of public release—
which we agree is not a legitimate legislative purpose.” Id. The letter
therefore concluded that section 6103(a) prohibited Treasury from dis-
closing the requested tax information to the Committee.
Treasury then denied the Chairman’s April 2019 Request. See Letter
for Richard E. Neal, Chairman, Committee on Ways and Means, U.S.
House of Representatives, from Steven T. Mnuchin, Secretary, Depart-
ment of the Treasury at 1 (May 6, 2019). The Secretary explained that
“[i]n reliance on the advice of the Department of Justice,” Treasury had
determined that the request “lacks a legitimate legislative purpose, and
pursuant to section 6103, [Treasury] is therefore not authorized to disclose
the requested returns and return information.” Id. The Secretary offered
instead to provide the Committee “information concerning the Commit-
information might serve. See Pl.’s Br. Summ. J. at 3–9, 38–41, Comm. on Ways & Means
v. U.S. Dep’t of the Treasury, No. 19-cv-1974 (D.D.C. Aug. 20, 2019), ECF No. 29-2
(identifying a desire to determine, among other things, whether the IRS lacks the re-
sources to handle complex presidential returns, whether President Trump had been treated
unfairly in the audit process, and relevant financial conflicts of interest).
13
45 Op. O.L.C. __ (July 30, 2021)
tee’s stated interest in how the IRS conducts mandatory examinations of
Presidents.” Id.The Committee responded by serving subpoenas on the Secretary and
the Commissioner, demanding the tax information. See Letter for Steven
T. Mnuchin, Secretary, Department of the Treasury, et al., from Richard
E. Neal, Chairman, Committee on Ways and Means, U.S. House of Rep-
resentatives at 3 & encl. (May 10, 2019). In an accompanying letter,
Chairman Neal reiterated that the Committee was conducting oversight
related to “the extent to which the IRS audits and enforces the Federal tax
laws against a President.” Id. at 2. Chairman Neal expressed his apprecia-
tion for Treasury’s offer of a briefing on the audit program but added that
such a briefing “is not a substitute for the requested tax returns and return
information.” Id. at 3.
In June 2019, this Office issued a more detailed opinion to Treasury.
That opinion explained that Congress lacks constitutional authority to
compel the Executive Branch to provide information to a committee, even
pursuant to a statute, if the request lacks a legitimate legislative purpose.
2019 Opinion, 43 Op. O.L.C. __, at *17–19. The 2019 Opinion recog-
nized that, under Supreme Court precedent in cases where committees
subpoenaed information or testimony, a court would be required to apply
a strong presumption that the Committee’s stated purpose was sincere. Id.at *24–25. It reasoned, however, that the Executive Branch does not owe
the Chairman a similar degree of deference. Id. at *25–26. The 2019
Opinion then concluded that “[t]he Committee’s asserted purpose—to
consider legislation regarding the IRS’s practices in auditing presidential
tax filings—was implausible,” and that the “objective mismatch between
the Committee’s stated purpose, on the one hand, and the particular in-
formation that the Committee demanded, on the other, provided strong
evidence of pretext.” Id. at *26.
The 2019 Opinion found that Treasury had “reasonably and correctly”
determined not only “that the Committee’s stated purpose was pretextual”
but also that its “actual purpose” for the request “was simply to provide a
means for public disclosure of the President’s tax returns.” Id. at *31.
Treasury’s assessment was, in turn, based upon numerous statements by
Democratic members of the House when they were in the House minority
during the 115th Congress, in 2017–2018, some of which the 2019 Opin-
ion described, see id. at *7–11. In those statements, House members
14
Ways and Means Committee’s Request for the Former President’s Tax Returns
insisted that President Trump should release his tax returns; and some
members of the Committee—including then-Ranking Member Neal—
urged it to “use the authority under Section 6103 to obtain President
Trump’s tax returns and make them available to the public.” H.R. Rep.
No. 115-73, at 8 (2017) (dissenting views of Ranking Member Neal and
Rep. Pascrell). After recounting these statements, the 2019 Opinion char-
acterized Chairman Neal’s April 2019 Request as “the culmination of a
sustained effort over more than two years to seek the public release of
President Trump’s tax returns.” Id. at *7.
The 2019 Opinion acknowledged, in passing, that members of Congress
had identified several other interests in the tax information, including so
that Congress could evaluate whether the President had financial conflicts
of interest or was compromised by foreign powers. Id. at *11 & n.19. The
Opinion did not explain, however, why those interests were insufficient to
justify the April 2019 Request, other than to assert that “many of them
would fall outside the jurisdiction of the Ways and Means Committee.”
Id. at *29.
The 2019 Opinion thus found that the Committee lacked a constitution-
ally adequate basis for the April 2019 Request, which meant that “disclo-
sure was not authorized under section 6103(f ), and section 6103(a) there-
fore required Treasury to maintain confidentiality of the requested tax
information.” Id. at *31.
D.
At the invitation of the Secretary, Committee staff met with Treasury
and IRS officials on June 10, 2019 for a briefing on the IRS’s presidential
audit program. See Letter for Steven T. Mnuchin, Secretary, Department
of the Treasury, et al., from Richard E. Neal, Chairman, Committee on
Ways and Means, U.S. House of Representatives at 1 (June 28, 2019). On
June 28, 2019, Chairman Neal notified Secretary Steven Mnuchin and
Commissioner Charles Rettig that the June 10 briefing had “only rein-
forced the Committee’s need to review the actual return information as
part of [the Committee’s] oversight duties.” Id. at 2. Four days later, the
Committee filed a lawsuit to enforce its subpoenas. See Compl., Comm.
on Ways & Means v. Dep’t of the Treasury, No. 19-cv-1974 (D.D.C.
July 2, 2019), ECF No. 1. The District Court stayed the proceedings
pending an en banc D.C. Circuit decision on congressional standing, see
15
45 Op. O.L.C. __ (July 30, 2021)
supra note 1, which the court of appeals issued on August 7, 2020, see
Comm. on the Judiciary v. McGahn, 968 F.3d 755 (D.C. Cir. 2020) (en
banc).
In February 2021, after President Trump had left office, the Ways and
Means Committee of the 117th Congress informed the District Court that
it still had a “need” for the tax information it had requested “to further its
ongoing investigation into Internal Revenue Service administration and
policy.” Joint Status Report at 2, Comm. on Ways & Means v. Dep’t of the
Treasury, No. 19-cv-1974 (D.D.C. Feb. 3, 2021), ECF No. 102. Treasury
requested more time to consider its position as new leadership transi-
tioned into office. Id. at 1. The District Court has kept the stay in place
and issued a standing order that Treasury notify former President Trump
in advance if it decides to provide the requested information to the Com-
mittee. Minute Order, Comm. on Ways & Means v. Dep’t of the Treasury,
No. 19-cv-1974 (D.D.C. Feb. 3, 2021).
E.
In June 2021, Chairman Neal submitted a new request under section
6103(f )(1), on behalf of the Ways and Means Committee in the 117th
Congress. The June 2021 Request seeks the same categories of infor-
mation as the April 2019 Request, but it covers each of the tax years 2015
to 2020 (whereas the April 2019 Request asked for tax information for the
tax years 2013 through 2018). See June 2021 Request at 6–7. The June
2021 Request expands upon the Committee’s earlier assertion of an inter-
est in assessing the IRS’s presidential audit program. It states that the
Committee has “serious concerns about the IRS’s full and fair administra-
tion of the tax laws with respect to a President and believes legislation
may be needed in this area.” Id. at 2. It also elaborates upon the Commit-
tee’s specific interest in former President Trump’s returns, emphasizing
that “[a]mong Presidents, Donald J. Trump is a unique taxpayer”:
Unlike his predecessors, he controlled hundreds of businesses
throughout his term [in office], raising concerns about financial con-
flicts of interest that might have affected administration of laws, in-
cluding the tax laws . . . . [He] also represented that he had been un-
der continuous audit by the IRS prior to and during his
16
Ways and Means Committee’s Request for the Former President’s Tax Returns
Presidency, . . . and routinely complained in public statements about
alleged unfair treatment by the IRS.
Id. at 4. The June 2021 Request states that the former President’s tax
information “[is] not only instructive—but indispensable—to the Commit-
tee’s inquiry into the mandatory audit program.” Id.The June 2021 Request identifies other rationales as well. It asserts that
“former President Trump’s tax returns could reveal hidden business
entanglements raising tax law and other issues, including conflicts of
interest, affecting proper execution of the former President’s responsibili-
ties,” and that “[a]n independent examination might also show foreign
financial influences on former President Trump that could inform relevant
congressional legislation.” Id. In closing, the Chairman wrote that it
would be “wrong” to assert that “the true and sole purpose of the Commit-
tee’s inquiry here is to expose former President Trump’s tax returns.” Id.
at 7.
Upon receiving the Chairman’s new request, and in light of our 2019
Opinion concerning the earlier request, you asked for our “legal opinion
as to whether the Secretary must furnish the requested returns and return
information to the Committee.” Letter for Dawn Johnsen, Acting Assis-
tant Attorney General, Office of Legal Counsel, from Laurie Schaffer,
Acting General Counsel, Department of the Treasury at 1 (June 17, 2021).
In a subsequent letter, you explained that “there have been a number of
developments” between the submission of the April 2019 Request and the
June 2021 Request that “raise questions about the applicability of the
[2019] OLC opinion to the Committee’s request in the 2021 Letter.”
Letter for Dawn Johnsen, Acting Assistant Attorney General, Office of
Legal Counsel, from Laurie Schaffer, Acting General Counsel, Depart-
ment of the Treasury at 2, 3 (July 16, 2021) (“July 2021 Schaffer Letter”).
You found significant, for example, that the June 2021 Request “goes into
further detail regarding the primary purpose of the Committee’s re-
quest”—namely, to inform the Committee’s understanding of the IRS’s
practice of auditing presidential tax returns. Id. at 2. You also noted the
Chairman’s invocation of additional purposes, namely, that the tax infor-
mation responsive to the June 2021 Request “could reveal business entan-
glements that raise tax law and other issues and foreign financial influ-
ences that could inform relevant congressional legislation.” Id. Your letter
further pointed out that the June 2021 Request “tailors the relevant time
17
45 Op. O.L.C. __ (July 30, 2021)
period for which tax returns are requested” to the former President’s years
in office and two adjacent years, thereby better aligning the request “with
the Committee’s stated purposes” regarding the IRS’s audits of presiden-
tial returns. Id. And you observed that, “[to] the extent separation of
powers concerns guided the conclusions of the [2019] OLC opinion, the
[June 2021 Request] for the records of a former rather than sitting presi-
dent may weigh in favor of a different conclusion.” Id.II.
The command of section 6103(f)(1) is unambiguous: “Upon written
request” from the chairman of one of the three tax committees, the
“Secretary shall furnish . . . any return or return information specified in
such request.” This provision thus vests the tax committees with a statu-
tory right of special access to tax information, subject only to the limita-
tion that any information that could identify or be associated with a
particular taxpayer “shall be furnished . . . only when [the Committee is]
sitting in closed executive session,” absent taxpayer consent. 26 U.S.C.
§ 6103(f )(1). And although the tax committees must receive the infor-
mation in executive session, by statute they enjoy a unique responsibility
to decide if and when that information should be disclosed to the public:
They may submit any portion of tax information they obtain to the full
Senate or the full House in public session. See id. § 6103(f )(4)(A).
This Office’s 2019 Opinion recognized that “[t]he plain language of 26
U.S.C. § 6103(f )(1) does not require a tax committee to state any purpose
in support of its request for tax information.” 2019 Opinion at *16. The
2019 Opinion also correctly noted, however, that this statutory mandate
does not eliminate the constitutional requirement that a congressional
committee may only compel production of information if it could serve a
legitimate legislative objective. Id. at *19. The question you have asked is
whether the Committee’s June 2021 Request meets this constitutional
test—i.e., whether the information the Committee seeks “is related to, and
in furtherance of, a legitimate task of the Congress.” Mazars, 140 S. Ct. at
2031 (internal citation omitted).
Before we consider that question, however, we believe it is important to
explain in some detail how and why our mode of analysis differs from the
analysis in the 2019 Opinion, particularly with respect to the proper
standard of review in assessing whether the Committee’s asserted reasons
18
Ways and Means Committee’s Request for the Former President’s Tax Returns
for its request are pretextual or genuine. The 2019 Opinion stated that
“[w]here . . . there is reason to doubt the Committee’s asserted legislative
purpose, Treasury may examine the objective fit between that purpose and
the information sought, as well as any other evidence that may bear upon
the Committee’s true objective.” Id. at *17. According to the opinion, in
doing so the Executive Branch, unlike a court, may “engage in searching
inquiries about congressional motivation,” id. at *24, and need not apply
the sort of “deference to the decisions of the political branches of gov-
ernment” that characterizes the Judiciary’s review of congressional re-
quests for information, id. at *25; see also id. (“these . . . limitations do
not apply to the Executive Branch”).
In our view, the 2019 Opinion failed to give due weight to Con-
gress’s status as a co-equal branch of government with legitimate needs
for information in order to exercise its constitutional authorities. Courts
generally presume that Executive and Legislative Branch officials act in
good faith and in furtherance of legitimate objectives. As this Office
has long recognized, such inter-branch comity is also appropriate when
the Executive Branch receives congressional requests for information.
The 2019 Opinion further erred in not appropriately respecting the
long-standing judgment of the political branches, embodied in section
6103(f )(1), that the tax committees are best situated to determine when
Congress ought to have access to tax information, notwithstanding the
confidentiality rules that govern in other contexts.
The presumption of good faith and regularity does not mean that the
Executive Branch must “blindly accept a pretextual justification” offered
by a committee to justify an informational request. Id. at *17. But espe-
cially where, as here, a tax committee requests tax information pursuant to
section 6103(f )(1) and has invoked facially valid reasons for its request
(despite the statute’s not requiring any), the Executive Branch should
conclude that the request lacks a legitimate legislative objective only in
exceptional circumstances.
A.
Congress’s authority to investigate “is inherent in the legislative pro-
cess.” Watkins v. United States, 354 U.S. 178, 187 (1957); see also
Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975) (“[T]he
power to investigate is inherent in the power to make laws.”). Although
19
45 Op. O.L.C. __ (July 30, 2021)
“Congress has no enumerated power to conduct investigations,” such a
power “‘is an essential and appropriate auxiliary to the legislative func-
tion.’” Mazars, 140 S. Ct. at 2031 (quoting McGrain v. Daugherty, 273
U.S. 135, 174 (1927)); see also Scope of Congressional Oversight and
Investigative Power With Respect to the Executive Branch, 9 Op. O.L.C.
60, 60 (1985) (“It is beyond dispute that Congress may conduct investiga-
tions in order to obtain facts pertinent to possible legislation and in order
to evaluate the effectiveness of current laws.”).
Congress’s investigative authority extends to any “subject on which
legislation could be had.” Mazars, 140 S. Ct. at 2031 (internal quotation
marks omitted). It is “as penetrating and far-reaching as the potential
power to enact and appropriate under the Constitution.” Barenblatt v.
United States, 360 U.S. 109, 111 (1959). Given the breadth of Congress’s
lawmaking and appropriating powers, it follows that Congress’s investi-
gatory authority is likewise “broad and indispensable.” Mazars, 140 S. Ct.
at 2031 (internal quotation marks omitted). This authority “encompasses
inquiries into the administration of existing laws, studies of proposed
laws, and ‘surveys of defects in our social, economic or political system
for the purpose of enabling Congress to remedy them.’” Id. (quoting
Watkins, 354 U.S. at 187). As the Court recently reaffirmed:
It is the proper duty of a representative body to look diligently into
every affair of government and to talk much about what it sees. . . .
Unless Congress ha[s] and use[s] every means of acquainting itself
with the acts and the disposition of the administrative agents of the
government, the country must be helpless to learn how it is being
served.
Id. at 2033 (quoting United States v. Rumely, 345 U.S. 41, 43 (1953)).
Yet this congressional power to investigate is not unlimited. Most rele-
vant here, a congressional request for information from the Executive
Branch “is valid only if it is ‘related to, and in furtherance of, a legitimate
task of the Congress.’” Id. at 2031 (quoting Watkins, 354 U.S. at 187). In
addition, as the Supreme Court recently reaffirmed, “Congress has no
general power to inquire into private affairs and compel disclosures,” and
“there is no congressional power to expose for the sake of exposure.” Id.
at 2032 (citations and internal quotation marks omitted); see also Doe v.
McMillan, 412 U.S. 306, 330 (1973) (Douglas, J., concurring) (“[T]here is
20
Ways and Means Committee’s Request for the Former President’s Tax Returns
simply ‘no general authority to expose the private affairs of individuals
without justification in terms of the functions of Congress.’” (quoting
Watkins, 354 U.S. at 187)). 17
Because Congress may not authorize its agents to wield powers in ex-
cess of its own, see Bowsher v. Synar, 478 U.S. 714, 726 (1986), section
6103(f )(1) could not confer upon a tax committee the power to obtain
otherwise confidential information that did not serve a legitimate legisla-
tive objective. Consequently, even when it is acting pursuant to section
6103(f ), the Committee can only compel the Executive Branch to share
information that is “related to, and in furtherance of, a legitimate task of
the Congress.” Mazars, 140 S. Ct. at 2031 (internal quotation marks
omitted).
B.
The 2019 Opinion correctly noted the need for a legitimate legislative
purpose that could support the Committee’s request for then-President
Trump’s tax returns. In evaluating whether the information sought in the
April 2019 Request could serve such a purpose, however, the 2019 Opin-
ion failed to afford the Committee the respect due to a coordinate branch
of government.
Federal courts generally afford the other branches of the federal gov-
ernment a strong presumption of good faith. For example, courts must
eschew “inquiring into ‘the mental processes of administrative deci-
sionmakers’” absent a “‘strong showing of bad faith or improper behav-
ior.’” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2573–74 (2019)
(quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
420 (1971)). The Supreme Court also has explained that a “presumption
of regularity” ordinarily attends “the official acts of public officers.”
United States v. Chem. Found., 272 U.S. 1, 14–15 (1926); see also Over-
ton Park, 401 U.S. at 415 (explaining that a government official’s deci-
sion “is entitled to a presumption of regularity”); Reno v. Am.-Arab Dis-
17 The Court has also stated that Congress’s investigative authority does not extend to
“matters which are within the exclusive province of one of the other branches of the
Government,” Barenblatt, 360 U.S. at 111, and that authority is of course “subject to the
limitations placed by the Constitution on governmental action, . . . [including] the Bill of
Rights,” id., and executive privilege, but those limitations are not germane here.
21
45 Op. O.L.C. __ (July 30, 2021)
crim. Comm., 525 U.S. 471, 489 (1999) (“[W]e have . . . requir[ed] a
criminal defendant to introduce clear evidence displacing the presumption
that a prosecutor has acted lawfully.” (internal quotation marks omitted)).
Accordingly, “a court may not reject an agency’s stated reasons for acting
simply because the agency might also have had other unstated reasons.”
Dep’t of Commerce, 139 S. Ct. at 2573. Nor may a court “set aside an
agency’s policymaking decision solely because it might have been influ-
enced by political considerations[.]” Id.Courts take a similar approach with respect to the actions of congres-
sional committees, extending deference to their assertions of need for the
information they seek and generously presuming a legitimate objective,
even in the absence of such an assertion. In the context of evaluating the
legitimacy of congressional investigatory demands, in particular, the
Supreme Court has long insisted that “[w]e are bound to presume that the
action of the legislative body was with a legitimate object if it is capable
of being so construed.” McGrain, 273 U.S. at 178 (quotation marks omit-
ted); see also id. (concluding that “[t]he only legitimate object the Senate
could have in ordering the investigation was to aid it in legislating, and
we think the subject-matter was such that the presumption should be
indulged that this was the real object”); Barry v. United States ex rel.
Cunningham, 279 U.S. 597, 619 (1929) (“The presumption in favor of
regularity, which applies to the proceedings of courts, cannot be denied to
the proceedings of the houses of Congress, when acting upon matters
within their constitutional authority.”).
The Executive Branch should likewise presume that congressional
agents are acting pursuant to their constitutional authority and in good
faith when evaluating the constitutionality of committee requests for
information. Such a presumption reflects a general principle of inter-
branch comity that is applicable to interactions among all three branches.
Consistent with the respect due Congress as a coordinate branch, it has
been the policy of the Executive Branch long “to comply with Congres-
sional requests for information to the fullest extent consistent with the
constitutional and statutory obligations of the Executive Branch.” Memo-
randum for the Heads of Executive Departments and Agencies from the
President, Re: Procedures Governing Responses to Congressional Re-
quests for Information at 1 (Nov. 4, 1982). And in doing so, the Executive
routinely accepts a committee’s representation about its legislative needs
22
Ways and Means Committee’s Request for the Former President’s Tax Returns
for the information. See, e.g., Response to Congressional Requests for
Information Regarding Decisions Made Under the Independent Counsel
Act, 10 Op. O.L.C. 68, 74 (1986) (reasoning that although Congress
cannot second-guess the Executive’s prosecutorial decisions, the Legisla-
ture has “a legitimate legislative interest in overseeing the [Department of
Justice’s] enforcement of the Independent Counsel Act and relevant
criminal statutes and in determining whether legislative revisions to the
Act should be made,” and then declining to reject that justification alto-
gether because it “would likely be deemed sufficient to meet the threshold
requirement for congressional inquiry” by a court in light of “the general
judicial reluctance to look behind congressional assertions of legislative
purpose”).
Of course, where such requests implicate the Executive Branch’s own
institutional interests, such as its operational needs for confidentiality or
secrecy, the political branches often engage in a practice of “accommoda-
tion”—the “tradition of negotiation and compromise.” Mazars, 140 S. Ct.
at 2031. In this “dynamic process,” each branch is subject to “an implicit
constitutional mandate to seek optimal accommodation through a realistic
evaluation of the needs of the conflicting branches in the particular fact
situation.” United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127, 130
(D.C. Cir. 1977). The Executive Branch therefore tries to tailor its disclo-
sures—and the conditions placed on those disclosures—to the particular
needs that the legislature describes. If, however, the Executive Branch
were to deny altogether the good faith of a committee’s assertion of its
legitimate interests, it would pretermit the accommodation process at the
outset.
Accordingly, even if this case involved only a congressional subpoena,
the Executive would be required to treat the Committee’s stated rationale
with deference and a presumption of good faith and regularity. All the
more reason exists to do so here, because the Committee is requesting
information pursuant to statutory authority. Unlike a subpoena, which
typically is issued by a single committee, usually without a vote of either
house of Congress—let alone both—section 6103(f )(1) has been approved
through the bicameralism and presentment process. U.S. Const. art. I, § 7,
cls. 2, 3; see INS v. Chadha, 462 U.S. 919, 949 (1983) (bicameralism and
presentment ensure that a law “has been carefully and fully considered by
the Nation’s elected officials”); id. at 959 (remarking that the records of
23
45 Op. O.L.C. __ (July 30, 2021)
the Constitutional Convention and debates in the States preceding ratifica-
tion reflect an “unmistakable expression of a determination that legisla-
tion by the national Congress be a step-by-step, deliberate and delibera-
tive process”). Respect for such determinations by the political branches
is reflected in the established presumption of constitutionality afforded
statutes by courts and the Executive Branch alike. See Nat’l Fed’n of
Indep. Bus. v. Sebelius, 567 U.S. 519, 537–38 (2012) (Roberts, C.J.)
(“Our permissive reading of these powers is explained in part by a general
reticence to invalidate the acts of the Nation’s elected leaders. Proper
respect for a co-ordinate branch of the government thus requires that we
strike down an Act of Congress only if the lack of constitutional authority
to pass [the] act in question is clearly demonstrated.” (internal quotation
marks omitted)); see also The Constitutional Separation of Powers Be-
tween the President and Congress, 20 Op. O.L.C. 124, 128 n.13 (1996)
(“[F]rom the beginning of the Republic, the executive branch has inter-
preted the Constitution with a due regard for the constitutional views of
Congress[.]”).
Section 6103(f )(1) provides an even greater reason to accord the Com-
mittee’s requests a stronger presumption of good faith and regularity. The
political branches have repeatedly determined over the course of the last
century that the congressional tax committees should have a statutorily
unlimited right of access to tax information—an authority predicated, at
least in part, upon the judgment that those committees are uniquely suited
to “assure explicit, deliberate, and responsible Congressional attention to
the use made by its members and committees of individual tax returns.” 18
Executive Branch officials should pay particular heed to this judgment.
The 2019 Opinion appears in some places to have applied a similarly
deferential standard. It briefly mentioned, for example, that the April 2019
Request is entitled to “due deference and respect,” 2019 Opinion at *3,
without elaboration or explanation of what level of deference was due.
18 Confidentiality of Tax Return Information: Hearing Before the H. Comm. on Ways
and Means, 94th Cong. 154 (1976) (summary of a report of an Administrative Conference
of the United States steering committee, explaining the Conference’s subsequent recom-
mendation to Congress (see id. at 157) “that the existing statutory authority . . . for
disclosure by the Internal Revenue Service to the House Committee on Way and Means,
the Senate Committee on Finance, and the Joint Committee on Internal Revenue Taxation,
be continued”).
24
Ways and Means Committee’s Request for the Former President’s Tax Returns
Elsewhere, it invoked a formulation (“blinks reality,” id. at 16) that is
consistent with our approach here. Fairly read, however, the opinion
applied more searching review. Indeed, it went out of its way to explain
that it was deviating from the relatively deferential posture prescribed by
Supreme Court precedents in cases involving congressional subpoenas.
The 2019 Opinion recognized that “courts have expressed reluctance to
probe congressional motivations in political disputes,” yet it asserted that
courts “have done so for reasons that do not apply to review by the Execu-
tive Branch.” Id. at *23. The Supreme Court’s decisions declining to
engage in searching review, it claimed, “rest upon institutional constraints
on the Judiciary” that militate in favor of deference to the decisions of the
political branches of government”—namely, that “the federal courts are
not well equipped to second-guess the action of the political branches by
close scrutiny of their motivations.” Id. at *25. By contrast, “[t]hese same
limitations do not apply to the Executive Branch, which operates as a
politically accountable check on the Legislative Branch.” Id.We believe that this argument in the 2019 Opinion was mistaken. Of
course, “‘a legislative choice is not subject to courtroom factfinding,’”
id. at *25 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315
(1993))—but neither is it subject to factfinding in the halls of the Treasury
and Justice Departments. The 2019 Opinion emphasized that the Execu-
tive Branch—unlike the courts—“operates as a politically accountable
check on the Legislative Branch.” Id. It is true that the Constitution di-
vides sovereign authority between the political branches, and that division
of authority ensures that “those who administer each department” possess
“the necessary constitutional means, and personal motives, to resist en-
croachments of the others.” The Federalist No. 51, at 349 (James Madi-
son) (Jacob E. Cooke ed., 1961). That rivalrous relationship, however,
also can lead each branch to inappropriately discount the legitimate inter-
ests of the other. See Mazars, 140 S. Ct. at 2032–35 (faulting both the
President and the House for failing to give adequate weight to the inter-
ests of the other). And the Judiciary is designed to be neutral and disinter-
ested. The relative competencies and capabilities of the Judiciary and the
Executive, in other words, hardly offer a reason for the latter to deviate
from the presumptions and norms of deference that the courts rightly
apply when assessing the justifications of the political branches.
25
45 Op. O.L.C. __ (July 30, 2021)
To be sure, a presumption of regularity and good faith can be overcome
in exceptional circumstances. The Executive Branch, like the Judiciary,
need not “blind” itself to “what [a]ll others can see and understand.’”
Mazars, 140 S. Ct. at 2034 (quoting Rumely, 345 U.S. at 44). If a commit-
tee’s asserted purpose truly “blinks reality,” 2019 Opinion at *16, an
executive agency need not credit that objective any more than a court
would. See, e.g., Dep’t of Commerce, 139 S. Ct. at 2575 (“[H]ere the . . .
sole stated reason . . . seems to have been contrived. . . . [W]e cannot
ignore the disconnect between the decision made and the explanation
given. Our review is deferential, but we are ‘not required to exhibit a
naiveté from which ordinary citizens are free.’”) (quoting United States v.
Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977) (Friendly, J.)). But to
overcome the presumption “it must be obvious” that a congressional
“committee’s investigation has exceeded the bounds of legislative pow-
er.” Tenney v. Branhove, 341 U.S. 367, 378 (1951); see also Reno, 525
U.S. at 489 (requiring “clear evidence” before the presumption of regular-
ity is displaced (internal quotation marks omitted)).
Moreover, the fact that a congressional request for information might
serve partisan or other political interests is generally irrelevant to as-
sessing its constitutionality, provided the request is, in fact, in the further-
ance of a legitimate legislative task—just as presidential policy decisions
are not suspect simply because the President may calculate that certain
decisions will redound to his or her political benefit. “[T]he motives of
committee members . . . alone would not vitiate an investigation which
had been instituted by a House of Congress if that assembly’s legislative
purpose is being served.” Watkins, 354 U.S. at 200; see also Eastland,
421 U.S. at 508 (“[I]n determining the legitimacy of a congressional act
we do not look to the motives alleged to have prompted it.”). Such mixed
congressional motivations are commonplace. Congress is composed of
elected members who stand for re-election. It is therefore neither unusual
nor illegitimate for partisan or other political considerations to factor into
Congress’s work. If the mere presence of a political motivation were
enough to disqualify a congressional request, the effect would be to deny
Congress its authority to seek information—a result that is incompatible
with the Constitution.
26
Ways and Means Committee’s Request for the Former President’s Tax Returns
C.
In the period between the Committee’s April 2019 Request and June
2021 Request, and after issuance of this Office’s 2019 Opinion, the Su-
preme Court decided Trump v. Mazars, 140 S. Ct. 2019. That case de-
serves special mention here because it involved congressional requests for
information regarding not just any private party or government official,
but the sitting President. In Mazars, three congressional committees had
issued four subpoenas to financial institutions seeking extensive infor-
mation about then-President Trump, his children, and affiliated business-
es. 140 S. Ct. at 2026–28. Among the committees’ explanations for their
subpoenas were that the information could help Congress assess “poten-
tial legislation on money laundering, terrorist financing, and the global
movement of illicit funds through the real estate market”; “banking regu-
lation[s]”; and, more generally, “multiple laws and legislative proposals
under our jurisdiction.” Id. at 2027–29 (internal quotation marks omitted).
The Court in Mazars reaffirmed the breadth and importance of Con-
gress’s investigatory authority in the mine run of cases. See, e.g., id. at
2031 (“Without information, Congress would be shooting in the dark,
unable to legislate wisely or effectively. The congressional power to
obtain information is broad and indispensable. It encompasses inquiries
into the administration of existing laws, studies of proposed laws, and
surveys of defects in our social, economic or political system for the
purpose of enabling the Congress to remedy them.” (internal citations and
quotation marks omitted)); id. at 2033 (“It is the proper duty of a repre-
sentative body to look diligently into every affair of government and to
talk much about what it sees.” (internal quotation marks omitted)). The
Court further held, however, that the deference a court must ordinarily
afford a congressional subpoena should be tempered in a case involving a
sitting president. In such cases, the Court explained, “[a] balanced ap-
proach is necessary,” one in which “courts must perform a careful analy-
sis that takes adequate account of the separation of powers principles at
stake, including both the significant legislative interests of Congress and
the unique position of the President.” Id. at 2035 (internal quotation marks
omitted). The Court expressed concern that a congressional demand
involving the President, even as to his personal rather than official activi-
ties, “may aim to harass the President or render him ‘complaisan[t] to the
humors of the Legislature,’” and thereby “‘exert an imperious controul’
27
45 Op. O.L.C. __ (July 30, 2021)
over the Executive Branch.” Id. at 2034 (quoting The Federalist No. 71, at
483–84 (Alexander Hamilton)).
Accordingly, the Court announced that certain “special considerations”
should inform the analysis in congressional subpoena cases involving a
sitting President, including “whether the asserted legislative purpose
warrants the significant step of involving the President and his papers”;
whether “other sources could reasonably provide Congress the infor-
mation it needs in light of its particular legislative objective”; whether the
legislative subpoena is “broader than reasonably necessary to support
Congress’s legislative objective”; how “detailed and substantial” is the
evidence of Congress’s legislative purpose”; and how extensive are the
“burdens imposed on the President by [the] subpoena.” Id. at 2035–36.
These considerations would impose a higher burden on Congress when
the personal information it is seeking pursuant to a subpoena belongs to
the President.
We do not understand Mazars to alter the legal framework for review-
ing the June 2021 Request. To begin, the Committee made the June 2021
Request not simply pursuant to a subpoena, but pursuant to a statute that
embodies the considered judgment of the political branches going back
nearly a century about the access that should be afforded the tax commit-
tees. More to the point, the June 2021 Request seeks the tax information,
not of a sitting President, but of a former President. This distinction
greatly mitigates the Court’s concerns about Congress using its investiga-
tory power to exert control over the President—to “render him complai-
san[t] to the humors of the Legislature.” Id. at 2034 (internal quotation
marks omitted). Similarly, the June 2021 Request does not threaten an
“‘unnecessary intrusion into the operation of the Office of the President’”
or to impose “burdens on the President’s time and attention.” Id. at 2036
(quoting Cheney v. U.S. Dist. Ct., 542 U.S. 367, 387 (2004)).
Even if separation of powers considerations continue to inform analysis
of the June 2021 Request, such considerations would be much less pro-
nounced after a President leaves office and returns to life as a private
citizen. Cf. A Sitting President’s Amenability to Indictment and Criminal
Prosecution, 24 Op. O.L.C. 222, 246–57 (2000) (explaining that although
the burdens on the presidency preclude indictment or trial of a sitting
President, such an immunity does not preclude prosecution once the
President leaves office, which “would generally result in the delay, but
28
Ways and Means Committee’s Request for the Former President’s Tax Returns
not the forbearance, of any criminal trial”). This is especially true where,
as here, the request does not seek disclosure of privileged presidential
communications or seek to impose costs on the President for acts taken in
his official capacity. See Clinton v. Jones, 520 U.S. 681, 692–95 (1997)
(distinguishing Nixon v. Fitzgerald, 457 U.S. 731 (1982)).
The Court in Mazars also noted a concern about Congress’s using the
President as a “case study” for “general legislation.” 140 S. Ct. at 2036
(internal quotation marks omitted). Here, too, however, we think that any
such concern would be misplaced in examining the legitimacy of the June
2021 Request. As explained above, in Mazars, the committees contended
that their pursuit of extensive information about a single individual and
his family and affiliated businesses was “related to potential legislation on
money laundering, terrorist financing, and the global movement of illicit
funds through the real estate market”; a “review [of] banking regula-
tion[s]”; and, generally, a “review of multiple laws and legislative pro-
posals under our jurisdiction.” Id. at 2027–29. Such a dragnet request in
aid of generally applicable legislative reforms is different not only in
degree, but in kind, from the June 2021 Request. Most important, the
Committee’s interests here are not about “general” topics distinct from the
presidency, but about an auditing program specific to the presidency and
oversight concerns particular to President Trump. See infra Part III.A, B.
III.
The June 2021 Request satisfies the requirements of section 6103(f )(1),
which affords the tax committees broad access to tax information, requir-
ing only that a chairman personally make the request for the information
in writing. The June 2021 Request goes further: Although the statute does
not require it, Chairman Neal has articulated in some detail the Commit-
tee’s reasons for requesting the information, as an “accommodation to the
Department of the Treasury and the IRS.” June 2021 Request at 1.
As we now explain, the subjects the Chairman has invoked are ones
upon which legislation might be had; the information requested is relevant
to informing Congress about them; and the Committee has been author-
ized to seek information in support of each of the Committee’s stated
objectives for the information. And the Executive Branch must accept the
Chairman’s stated rationales as genuine notwithstanding statements by
29
45 Op. O.L.C. __ (July 30, 2021)
some legislators that might give rise to a supposition that they may have
other motives for obtaining the information.
A.
The principal interest Chairman Neal invoked in his June 2021 Request
is that the Committee has “serious concerns about the IRS’s full and fair
administration of the tax laws with respect to a President and believes
legislation may be needed in this area.” June 2021 Request at 2. The
Committee has a particular interest in the functioning of the mandatory
audit program for presidential tax returns, which the IRS created in 1977.
See supra Part I.E; I.R.M. § 3.28.3 (2020). The June 2021 Request elabo-
rates on the nature of this interest, describing the Committee’s concern
that the IRS’s program may lack “adequate safeguards” against “improper
influence by a President,” especially given that the identity of the revenue
agent assigned to a presidential audit “is known by the President and the
President’s representatives, who communicate directly with the agent
without supervision.” Id. at 2–3; see also id. at 2 (“[The Committee . . .
seeks to explore legislation intended to ensure that IRS employees in any
way involved in a President’s audit are protected in the course of their
work[.]”). More broadly, “[t]he Committee has reason to believe that the
mandatory audit program is not advancing the purpose for which it was
created, which may require Congress to act through legislation.” Id. The
Chairman further explained that the particular information the Committee
has requested—including any audit files—is “integral to the Committee’s
inquiry into the mandatory audit program” and may help the Committee
determine “(i) whether IRS agents have been able to operate free from
improper interference by a President or his representatives; (ii) whether
agents have looked at ongoing audits that predate a President’s term in
office; (iii) whether agents have reviewed underlying business activities,
especially activities involving many interrelated entities and income from
and deductions related to foreign sources; (iv) whether agents have had
access to the necessary books and records to substantiate amounts on the
tax return; (v) whether there have been any examination findings or ad-
justments and how a President has responded to such findings or adjust-
ments; and (vi) whether agents have had access to the necessary resources
to undertake an exhaustive review of a complex taxpayer on an annual
basis.” Id. at 3.
30
Ways and Means Committee’s Request for the Former President’s Tax Returns
These matters, and the presidential audit program more generally,
clearly are subjects on which “legislation may be had.” Eastland, 421
U.S. at 506; see also McGrain, 273 U.S. at 177. Congress has the authori-
ty “[t]o lay and collect Taxes,” U.S. Const. art. I, § 8, cl. 1, and the tax
laws and the IRS are themselves creations of statutes. Congress also has
expansive authority to enact “all Laws which shall be necessary and
proper for carrying into Execution” its constitutional authorities, id. art. I,
§ 8, cl. 18, and, accordingly, to determine how the IRS should use appro-
priated funds to audit presidential tax returns, id. art. I, § 9, cl. 7. See also
id. art. I, § 8, cl. 1.
The 2019 Opinion did not contend otherwise. Indeed, it acknowledged
that “a review by the Committee of the IRS’s performance of its duties
would appear, on its face, to be an example of routine oversight” within
Congress’s authority. 2019 Opinion at *27. Instead, the 2019 Opinion
argued that the audit rationale “blinks reality” and is “pretextual,” in that
“[n]o one could reasonably believe that the Committee seeks six years of
President Trump’s tax returns because of a newly discovered interest in
legislating on the presidential-audit process.” Id. at *16–17. The 2019
Opinion stated three bases for its refusal to credit the Chairman’s earlier
presidential audit program justification. We question whether these objec-
tions were well-taken at the time. In any event, we now conclude that
none offers a basis for calling into question the auditing rationale de-
scribed in the Chairman’s new June 2021 Request.
First, the 2019 Opinion asserted that the Chairman had not focused suf-
ficiently on seeking records about the audit processes themselves—“the
actual IRS documents that would provide the best evidence of its policies
and procedures relating to presidential audits.” Id. at *27. “The Commit-
tee’s lack of interest in the IRS’s audit policies and procedures, or in the
audits themselves, speaks volumes.” Id. at *28. 19 The June 2021 Request,
however, asks for “[a]ll administrative files (workpapers, affidavits, etc.)”
19 In fact, the Committee’s April 2019 Request did seek the “administrative files” ac-
companying the President’s tax returns, which would include such audit-related infor-
mation. The 2019 Opinion also noted that Chairman Neal’s accompanying “press release”
referred only to the President’s tax returns, and not to the IRS’s administrative files. Id. at
*27–28. But the contents of an elected official’s press release describing a formal request
are not grounds for disregarding the contents of that request itself for purposes of as-
sessing its constitutional sufficiency.
31
45 Op. O.L.C. __ (July 30, 2021)
associated with each requested return, 2021 Request at 5, and it explains
in detail how review of those files could assist the Committee’s inquiry,
see id. at 3. That more than suffices to demonstrate that the Committee is
interested in how the IRS is treating the underlying tax returns and not
merely in the information contained in the returns themselves.
The second basis the 2019 Opinion offered for doubting the Chairman’s
stated rationale was that only two of the six years of records that Chair-
man Neal requested corresponded to President Trump’s tenure in office.
Id. at *28. This chronological mismatch, the 2019 Opinion stated, be-
trayed a lack of any “connection at all with the IRS audit procedures
supposedly under investigation.” Id. It is true that the “mandatory audit
procedures” governing the IRS’s presidential audit program apply to
returns filed while a President is in office. July 2021 Schaffer Letter at 2
n.7; see I.R.M. § 3.28.3.5(1) (2020) (providing instructions to govern the
IRS “when processing the individual tax returns and accounts of the
President and Vice President of the United States in office at the time of
filing”). The June 2021 Request asks for tax information going back only
to the tax year 2015. It therefore covers the returns that former President
Trump presumably filed during his four years in office, plus one year on
either side of his presidency. This period is well-aligned with the Com-
mittee’s interest in the presidential tax audit program.
The scope of a mandatory presidential audit “can be expanded to in-
clude prior year and related returns” if “risk protocols” warrant. Decl. of
Sunita Lough ¶ 39, Comm. on Ways & Means v. U.S. Dep’t of Treasury,
No. 19-cv-1974 (D.D.C. Sept. 6, 2019), ECF No. 44-4. The Committee
therefore could believe that the IRS’s audit of former President Trump’s
returns might involve examination of returns filed shortly before he took
office. And even if it turns out that, for example, the IRS’s presidential
audit did not include review of one or two of the returns the Committee is
seeking, the Committee does not have knowledge of the scope of the
audit. See Eastland, 421 U.S. at 509 (“The very nature of the investigative
function—like any research—is that it takes the searchers up some ‘blind
alleys’ and into nonproductive enterprises. To be a valid legislative in-
quiry there need be no predictable end result.”).
Finally, the 2019 Opinion reasoned that “the Committee’s exclusive
focus on a single taxpayer, President Trump, belies its stated interest in
investigating an IRS audit program that has applied to all Presidents and
32
Ways and Means Committee’s Request for the Former President’s Tax Returns
Vice Presidents since 1977.” 2019 Opinion at *28. Armed with infor-
mation about only one person and related businesses, the 2019 Opinion
argued, the Committee would not “even begin to be able to assess whether
the IRS’s policies and procedures are being applied in an evenhanded
manner in the presidential-audit program.” Id. at *29.
As the Chairman notes in his June 2021 Request, it is reasonable for the
Committee to focus on former President Trump’s returns, just as the Joint
Committee on Taxation’s predecessor asked only for the IRS’s audit of
President Nixon’s returns in 1973 when there was reason to believe that
the auditing process might have been deficient in that particular case 20:
Knowing only what has been reported publicly, there is ample reason
to question whether the mandatory audit program has functioned as
intended when the taxpayer’s history is as complex as former Presi-
dent Trump’s. Simply put, it does not appear that the IRM provisions
concerning the mandatory Presidential audit are sufficiently robust
for a President who: (i) has inordinately large and complex returns;
(ii) controls hundreds of business entities, some of which receive in-
come from foreign sources; (iii) raises issues of financial conflicts of
interest; (iv) takes aggressive tax positions to minimize his liability;
(v) is under continuous audit by the IRS; (vi) has a $73 million re-
fund under review; and (vii) openly attacks the IRS and the very IRS
employees conducting the mandatory audit. To be sure that the man-
datory audit program will work for all future President-taxpayers
(including those with similarly complex taxes), we must see how the
program fared under the exceedingly challenging circumstances pre-
sented by former President Trump.
June 2021 Request at 6 (internal quotation marks omitted). This explana-
tion, which relates to questions about how the presidential auditing pro-
20See Staff of Joint Comm. on Internal Revenue Taxation, Examination of President
Nixon’s Tax Returns for 1969 Through 1972, S. Rep. No. 93-768 (1974); see also Letter
for Richard E. Neal, Chairman, Committee on Ways and Means, U.S. House of Repre-
sentatives, from Thomas A. Barthold, Chief of Staff, Joint Committee on Taxation at 1
(July 23, 2019), reprinted in H.R. Rep. No. 116-186, at 10 (2019) (explaining that alt-
hough President Nixon voluntarily released some of his tax returns, the committee also
received confidential return information directly from the IRS about Nixon and his
daughter and son-in-law, which the Committee thereafter used to inform its investigation
and eventual report on Nixon’s tax deficiencies).
33
45 Op. O.L.C. __ (July 30, 2021)
cess works under conditions of stress and with particularly complex tax
returns, suffices to explain the Committee’s focus, especially given the
presumption of legitimacy and good faith that is due the Committee.
B.
In addition to the stated interest in the presidential audit program, the
June 2021 Request asserts that “former President Trump’s tax returns
could reveal hidden business entanglements raising tax law and other
issues, including conflicts of interest, affecting proper execution of the
former President’s responsibilities,” and that an “independent examina-
tion” of those documents “might also show foreign financial influences on
former President Trump that could inform relevant congressional legisla-
tion.” June 2021 Request at 4. 21 These objectives are independently suffi-
cient to justify the request for the former President’s tax records.
An investigation into possible presidential conflicts of interest or for-
eign influence and leverage involves “a subject on which ‘legislation
could be had.’” Eastland, 421 U.S. at 506 (quoting McGrain, 273 U.S. at
177). Such an investigation might, for example, inform debate over pro-
posed legislation to require more extensive or regular financial or tax
return disclosure by Presidents and presidential candidates. 22 Even if such
an investigation ultimately did not produce statutory proposals, Congress
and the public certainly have a compelling interest in knowing whether
the President has accepted foreign emoluments or otherwise been influ-
enced by foreign nations, and whether his or her conduct in office might
be influenced by personal economic entanglements. “The public is, of
21 Similarly, in its filings in the litigation concerning the April 2019 Request and relat-
ed subpoenas, the Committee described its interest in knowing “whether the President has
business entanglements that might create conflicts of interest or otherwise influence his
proper execution of his responsibilities.” Pl.’s Br. Summ. J. 41, Comm. on Ways & Means
v. Dep’t of the Treasury, No. 19-cv-1974 (D.D.C. Aug. 20, 2019), ECF No. 29-2.
22 Laws of this type would hardly be unprecedented. See, for example, the Ethics in
Government Act, 5 U.S.C. app. §§ 101(a) & (f )(1), 102 (requiring the President to file
periodic financial disclosures) and the Foreign Gifts and Decorations Act, 5 U.S.C.
§ 7342(a)(1)(E) & (c)(3) (requiring the President to report foreign gifts), both of which
inform Congress and the public of possible risks of undue influence on the President’s
actions. See also H.R. 1, 117th Cong. § 10001 (2021) (proposed legislation requiring
presidents, vice presidents, and candidates for those offices to disclose individual tax
returns for the ten most recent tax years).
34
Ways and Means Committee’s Request for the Former President’s Tax Returns
course, entitled to be informed concerning the workings of its govern-
ment,” Watkins, 354 U.S. at 200—and that includes knowing whether
government officials are faithfully performing their duties on behalf of the
Nation or whether they are, instead, unduly influenced by self-interest. 23
A counterintelligence investigation concerning foreign influence on
federal officials, in particular, is certainly a legitimate congressional
task. 24
Our 2019 Opinion acknowledged that such concerns might have been
among the reasons that Congress wished to examine then-President
Trump’s tax information. 2019 Opinion at *11 & n.19, *29. Yet that
opinion largely disregarded these rationales, remarking only that “many”
of them “would fall outside the jurisdiction of the Ways and Means
Committee, which is the only House committee that could release the
returns to the public.” Id. at *29. That objection was misplaced for two
reasons.
For one thing, the Committee did have “jurisdiction” under House
Rules with respect to “[a]ll bills, resolutions, and other matters relating to
. . . [r]evenue measures generally.” H.R. Rules, 116th Cong., Rule X,
cl. 1(t)(3) (Jan. 11, 2019). That continues to be true today. H.R. Rules,
23 See also id. at 200 n.33 (reaffirming “the power of the Congress to inquire into and
publicize corruption, maladministration or inefficiency in agencies of the Government”—
an “‘informing function’” that Congress has “assiduously performed” “[f]rom the earliest
times in its history” (quoting Woodrow Wilson, Congressional Government 303 (1885));
Nixon v. Fitzgerald, 457 U.S. 731, 757 (1982) (“Vigilant oversight by Congress also may
serve to deter Presidential abuses of office[.]”); Nixon v. Adm’r of Gen. Servs., 433 U.S.
425, 452–53 (1977) (upholding a law requiring the President to preserve official records
in part because it served the “substantial interest[]” of protecting “the American people’s
ability to reconstruct and come to terms with their history”).
24 For example, the House Permanent Select Committee on Intelligence (“HPSCI”) has
been investigating the possible “counterintelligence risks arising from foreign financial
conflicts of interest [involving the former President] and the possibility of foreign finan-
cial leverage” involving former President Trump. See Memorandum for HPSCI Members
from Adam Schiff, Chairman, HPSCI, Re: Update on the Committee’s Investigation of
Counterintelligence Risks Arising from President Trump’s Foreign Financial Ties at 3,
10, 16 (Aug. 25, 2020), https://perma.cc/JR8G-ZHY4 (explaining that HPCSI is seeking
information on the former President’s foreign financial ties in order to, inter alia, identify
counterintelligence risks, including the possibility that “particular foreign governments,
entities, or individuals have exploited, or could potentially exploit, any leverage over the
President that such financial ties provide,” and to “inform [HPSCI’s] consideration of
potential legislation to address these threats”).
35
45 Op. O.L.C. __ (July 30, 2021)
117th Cong., Rule X, cl. 1(t)(3) (Feb. 2, 2021). Such jurisdiction includes
all “matters relating to” tax returns. Id. The 2019 Opinion ignored the
possibility that evidence of foreign financial influence or conflicts of
interest might lead to legislation requiring future Presidents and presiden-
tial candidates to make their tax returns public. Indeed, H.R. 1, which
passed the House in March and is currently pending before the Senate,
would require such action. H.R. 1, 117th Cong., § 10001. Moreover, it is
generally not the proper business of the Executive Branch to police
whether a House committee adheres to jurisdictional limits imposed by
House rules. That is an internal concern for the House itself to attend to,
as it sees fit. Cf. U.S. Const. art. I, § 5, cl. 2 (“Each House may determine
the Rules of its Proceedings, punish its Members for disorderly Behavior,
and, with the Concurrence of two thirds, expel a Member.”).
To be sure, on rare occasions the other two branches have questioned a
congressional committee’s jurisdiction (under the chamber’s rules or an
authorizing resolution) when the committee has tried to compel produc-
tion of evidence or testimony. When they have done so, however, it has
been in order to ascertain whether the house of Congress has authorized
the committee to exercise that house’s own investigative powers—i.e.,
whether the house has delegated a particular aspect of its oversight au-
thorities to the committee in question. See, e.g., Rumely, 345 U.S. at 44–
45; Watkins, 354 U.S. at 200–01. Such an inquiry, however, is simply
inapposite here, when the Committee is acting pursuant to section
6103(f )(1), because that statute provides the Committee with the authority
to “serv[e] as the representative[] of the parent assembly in collecting
information for a legislative purpose.” Id. at 200. No additional House
resolution or jurisdictional rule is needed. 25 And because it is within
25 See Letter for William E. Simon, Secretary, Department of the Treasury, from the
Attorney General at 6–8 (May 25, 1974) (concluding that the metes and bounds of the
pre-1976 version of section 6103 superseded any “jurisdictional” authority that a non-tax
committee may have to demand Treasury’s production of tax returns under its chamber’s
rules or non-section 6103-based resolutions). Moreover, that authority of the Committee
is legitimate even if the Committee might consider sharing some of the information with
the House as a whole so that it may be used by another committee that has a particularized
interest in it. See id. at 7 & n.4 (explaining that if the House Judiciary Committee wished
to obtain President Nixon’s tax records at issue there, it would have to do so by one of the
means then specified in the executive branch rules promulgated pursuant to the version of
section 6103 then in place or potentially “by means of one of the specified [tax] commit-
36
Ways and Means Committee’s Request for the Former President’s Tax Returns
Congress’s power to investigate possible conflicts of interest and foreign
influence concerning federal officials, seeking information that could be
germane to such an investigation is an alternative, adequate justification
for the production of the tax information the Committee has requested.
C.
This Office’s 2019 Opinion ultimately rested upon the assertion that the
Committee was disingenuous about its true objective in seeking President
Trump’s tax information and that the Committee’s April 2019 Request
instead appeared to be designed “to accomplish the Chairman’s long-
standing and avowed goal . . . ‘to obtain and expose the President’s tax
returns.’” 2019 Opinion at *29 (quoting Letter for Richard E. Neal,
Chairman, Committee on Ways and Means, U.S. House of Representa-
tives, from Steven T. Mnuchin, Secretary of the Treasury at 4 (Apr. 23,
2019) (“Mnuchin Letter”)). In support of this view, the opinion cited
statements made in 2017 by Democratic members of the Committee,
including Representative Neal (at the time the Ranking Member), urging
the Committee to use its authority under section 6103(f ) “to obtain Presi-
dent Trump’s tax returns and make them available to the public.” 2019
Opinion at *9 (quoting H.R. Rep. No. 115-73, at 8 (2017) (dissenting
views)). Based upon these earlier statements, the opinion concluded that
“[t]here is one and only one ‘predictable end result’ of the Committee’s
inquiry: the public exposure of the President’s tax returns.” Id. at *30
(quoting Letter for Charles P. Rettig, Commissioner, Internal Revenue
Service, from Richard E. Neal, Chairman, Committee on Ways and
Means, U.S. House of Representatives at 2 (Apr. 13, 2019)). And that
objective, the opinion further concluded, was not within Congress’s
constitutional authority because “Congress may not pursue public disclo-
sure for its own sake.” Id. at *31; see also id. at *14 (describing an “‘ef-
fort to expose the President’s tax returns for the sake of exposure’” (quot-
ing Mnuchin Letter at 3)).
There are two problems with this analysis. First, if the Committee
chooses to publicly disclose any of the tax information in a report to the
House (which is the method that section 6103(f )(4)(A) permits), presum-
tees,” such as the Joint Committee on Taxation, which had authority to obtain the records
pursuant to its authority under section 6103).
37
45 Op. O.L.C. __ (July 30, 2021)
ably it would not do so purely “for the sake of exposure.” Rather, it would
do so in order to inform both the House and the American people of
problems (or the lack thereof) within the government, or concerning its
elected officials—“a subject on which legislation could be had.” Mazars,
140 S. Ct. at 2031 (internal quotation marks omitted). Such congressional
reports and investigations are common. 26 One such case even involved an
examination of a President’s apparent failure to comply with the tax laws
and the inadequacies of the IRS’s audit of that President. See Staff of
Joint Committee on Internal Revenue Taxation, Examination of President
Nixon’s Tax Returns for 1969 Through 1972, S. Rep. No. 93-768 (1974).
The 2019 Opinion itself affirmed that Congress has such an investigato-
ry function. 2019 Opinion at *18 (“Congress’s investigative authority also
‘comprehends probes into departments of the Federal Government to
expose corruption, inefficiency, or waste’” (quoting Watkins, 354 U.S. at
187)). See also Mazars, 140 S. Ct. at 2033 (“‘It is the proper duty of a
representative body to look diligently into every affair of government and
to talk much about what it sees. It is meant to be the eyes and the voice,
and to embody the wisdom and will of its constituents.’” (quoting Rumely,
345 U.S. at 43)). Indeed, the 2019 Opinion apparently did not take issue
with the propriety of the interest of some legislators to “show ‘what the
Russians have on Donald Trump,’ reveal a potential ‘Chinese connection,’
. . . [or] expose any alleged emoluments received from foreign govern-
ments.” 2019 Opinion at *11. 27
Second, although it is possible that some members of Congress might
hope that former President Trump’s tax returns are published solely in
order to embarrass him or to “expose for the sake of exposure,” such
26 The most-well known examples include investigations of the Teapot Dome scandal,
Watergate, Whitewater, the Benghazi attacks, and (currently) the events of January 6,
2021.
27 The 2019 Opinion elsewhere stated that “‘Congress’s legislative function does not
imply a freestanding authority to gather information for the sole purpose of informing the
American people.’” 2019 Opinion at *19 (quoting Assertion of Executive Privilege over
Documents Generated in Response to Congressional Investigation into Operation Fast
and Furious, 36 Op. O.L.C. __, at *7 (June 19, 2012) (Holder, Att’y Gen.)). There is no
need for us to examine this question because here, as in virtually all cases involving
congressional investigations of government officials, Congress is not purporting to
exercise any such “freestanding” authority. It is instead acting to inform both itself and
the public with respect to matters on which legislation can be, and has been, considered
and enacted.
38
Ways and Means Committee’s Request for the Former President’s Tax Returns
individuals’ motives would not serve to invalidate the Committee’s re-
quest. See Barenblatt, 360 U.S. at 133 (explaining that although “‘there is
no congressional power to expose for the sake of exposure,’” the motives
of committee members alone “would not vitiate an investigation which
had been instituted by a House of Congress if that assembly’s legislative
purpose is being served’”) (quoting Watkins, 354 U.S. at 200). The Com-
mittee’s June 2021 Request plainly serves legitimate legislative objec-
tives, even if some individual legislators might have other reasons for
wanting access to the information.
We cannot know where receipt of the requested tax information will
take the Committee, any more than the Committee itself can predict
what it will find or determine. After reviewing and analyzing the in-
formation, it will be squarely within the Committee’s responsibility to
decide whether or not to include some of that information in a report to
the full House that might be available to the public, see 26 U.S.C.
§ 6103(f )(4)(A). Particularly in light of section 6103(f )(1), the respect
due a co-equal branch of government requires that we presume the
Committee will handle the tax information it receives with sensitivity to
taxpayer privacy concerns and therefore will include in such a report
only the information it believes appropriate for the particular congres-
sional task at hand.
IV.
For the foregoing reasons, we conclude that the Secretary must comply
with the Ways and Means Committee’s June 16, 2021 request pursuant to
26 U.S.C. § 6103(f )(1) to furnish the Committee with the specified tax
returns and related tax information.
DAWN JOHNSEN
Acting Assistant Attorney General
Office of Legal Counsel
39