Congressional Committee's Request for the President's Tax Returns Under 26 U.S.C. § 6103(f)

(Slip Opinion)
Congressional Committee’s Request for the
President’s Tax Returns Under 26 U.S.C. § 6103(f )
The provisions in 26 U.S.C. § 6103 protecting confidentiality of tax returns prohibited the
Department of the Treasury from complying with a request by the Chairman of the
House Ways and Means Committee for the President’s tax returns. The text of section
6103(f ), the statutory exception under which the request was made, does not require
the Committee to state any purpose for its request. But Congress could not constitu-
tionally confer upon the Committee the right to compel the Executive Branch to dis-
close confidential information without a legitimate legislative purpose. Under the facts
and circumstances, the Secretary of the Treasury reasonably and correctly concluded
that the Committee’s asserted interest in reviewing the Internal Revenue Service’s
audits of presidential returns was pretextual and that its true aim was to make the Pres-
ident’s tax returns public, which is not a legitimate legislative purpose.
Because section 6103(a) prohibited the disclosure of the tax returns sought in the Chair-
man’s request, as well as in the corresponding subpoenas, the Department of the
Treasury’s refusal to provide the information did not violate either 26 U.S.C.
§ 7214(a)(3) or 2 U.S.C. § 192.
June 13, 2019
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF THE TREASURY
The Internal Revenue Code requires that the Department of the Treas-
ury keep tax returns and related information confidential, subject to cer-
tain exceptions, and makes the unauthorized disclosure of such infor-
mation a federal crime. See 26 U.S.C. §§ 6103(a), 7213(a). You have
asked for our advice about one exception, which provides that the Secre-
tary of the Treasury “shall furnish” tax-return information “[u]pon written
request from the chairman of the Committee on Ways and Means of the
House of Representatives.” Id. § 6103(f )(1).
On April 3, 2019, the Chairman of the House Committee on Ways and
Means, Representative Richard Neal, requested the last six years of Presi-
dent Trump’s individual tax returns, as well as those of eight associated
business entities. 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 3
Neal Letter”). He also requested the audit histories and work papers
associated with each return. Id. The Chairman’s request, however, did not
make any mention of his long-standing campaign to acquire and publish
the President’s confidential tax returns.
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Opinions of the Office of Legal Counsel in Volume 43
During the prior Congress, Chairman Neal, who was then the Commit-
tee’s Ranking Member, repeatedly urged the Committee to invoke section
6103(f ) to make the President’s tax returns “available to the public,”
declaring that “Committee Democrats remain steadfast in [their] pursuit to
have [President Trump’s] individual tax returns disclosed to the public.”
H.R. Rep. No. 115-309, at 8 (2017) (dissenting views); H.R. Rep. No.
115-73, at 8 (2017) (dissenting views). Before the midterm elections,
Chairman Neal (as well as other members of his party) promised that, if
they won a majority in the House, then the Chairman would wield his
authority to demand the President’s tax returns. 1
After becoming Chairman, he followed up on this promise by request-
ing that the Internal Revenue Service (“IRS”) disclose the President’s tax
returns. In lieu of his prior focus on making the returns public, he asserted
that the Committee required six years of President Trump’s tax returns
because it was “considering legislative proposals and conducting over-
sight 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.” April 3 Neal Letter at 1. To that end, Chairman Neal claimed
that “[i]t is necessary for the Committee to determine the scope of any
such examination and whether it includes a review of underlying business
activities required to be reported on the individual income tax return.” Id.
The Chairman did not explain why, if the Committee were sincerely
interested in understanding how the IRS audits presidential tax returns, he
needed to review President Trump’s tax returns for many years before his
presidency. Nor did the Chairman request any information concerning the
IRS’s actual policies or practices governing presidential audits or the
audit histories for any President other than President Trump.
In view of these marked discrepancies in the public record, Treasury,
quite reasonably, concluded that Chairman Neal had not articulated the
real reason for his request. The Chairman’s request that Treasury turn
over the President’s tax returns, for the apparent purpose of making them
public, amounted to an unprecedented use of the Committee’s authority
1 See Richard Rubin, Trump’s Tax Returns in the Spotlight if Democrats Capture the
House, Wall St. J., Oct. 3, 2018, https://www.wsj.com/articles/trumps-tax-returns-in-the-
spotlight-if-democrats-capture-the-house-1538575880; see also, e.g., John Wildermuth,
Pelosi: Trump’s tax returns are fair game if Democrats win House, S.F. Chron., Oct. 11,
2018, https://www.sfchronicle.com/politics/article/Pelosi-Trump-s-tax-returns-are-fair-
game-if-13297954.php (quoting Minority Leader Pelosi: “Demanding the president’s tax
returns ‘is one of the first things we’d do—that’s the easiest thing in the world.’”).
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Congressional Committee’s Request for the President’s Tax Returns
and raised a serious risk of abuse. As you explained, Treasury was com-
mitted to complying with the law, but under the circumstances, it ques-
tioned whether the Chairman’s request was lawful. Accordingly, you
requested this Office’s advice about whether Treasury should fulfill the
request. See Letter for Steven A. Engel, Assistant Attorney General,
Office of Legal Counsel, from Brent J. McIntosh, General Counsel,
Department of the Treasury at 1 (May 2, 2019).
Given your desire to accommodate the Chairman’s deadlines, we
agreed to provide our conclusions, with a more detailed opinion to follow.
We advised that, although the text of section 6103(f ) does not require the
Committee to state any purpose for its request, Congress could not consti-
tutionally confer upon itself the right to compel a disclosure by the Execu-
tive Branch of confidential information that does not serve a legitimate
legislative purpose. See 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) (“Engel Letter”).
While the Executive Branch should accord due deference and respect to
congressional requests, the Executive need not treat the Committee’s
assertion of the legitimacy of its purpose as unquestionable. Id. The
President stands at the head of a co-equal branch of government, and he is
separately accountable to the people for the faithful performance of his
responsibilities. Treasury thus had the responsibility to confirm for itself
that the Chairman’s request serves a legitimate legislative end. Id.
Under the circumstances, we agreed that it was reasonable to conclude
that the Committee’s asserted interest in the IRS’s audit of presidential
returns was pretextual, and that the true aim was to make the President’s
tax returns public. Id. We found strong support for that conclusion in the
“manner by which the Committee has conducted its stated investigation,
the lack of fit between the requested documents and the proffered reasons,
and the many statements by the Chairman and other Members of Congress
explaining their purpose for pursuing the tax returns.” Id. The Supreme
Court has made clear that “there is no congressional power to expose
for the sake of exposure,” Watkins v. United States, 354 U.S. 178, 200
(1957), and transmitting information “to inform the public . . . is not a part
of the legislative function,” Hutchinson v. Proxmire, 443 U.S. 111, 133
(1979). In the absence of a legitimate legislative purpose, the disclosure
of the President’s tax returns to the Chairman was barred by section
6103(a) and the Constitution. Engel Letter at 1. This opinion explains the
basis for those conclusions.
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Opinions of the Office of Legal Counsel in Volume 43
I.
A.
For several decades before 1976, federal tax returns were generally
considered “public” records, but they were open to inspection only under
regulations or order of the President; while often available to govern-
mental entities, they were nearly always unavailable to the public. See
1 Office of Tax Policy, Department of the Treasury, Report to the Con-
gress on Scope and Use of Taxpayer Confidentiality and Disclosure
Provisions 17–20 (Oct. 2000). By the mid-1970s, Congress had become
“increasingly concerned about the disclosure and use of information
gathered from and about citizens by [federal] agencies.” Id. at 20. Gov-
ernment officials had misused tax returns for political purposes, and
the absence of genuine confidentiality was thought to impair voluntary
compliance with the tax system. See id. at 21; see also S. Rep. No. 94-
938, at 317–18 (1976) (describing questions about “whether the present
extent of actual and potential disclosure” presented an “abuse of privacy”
that “would seriously impair the effectiveness of our country’s very
successful voluntary assessment system which is the mainstay of the
Federal tax system”); Staff of the Joint Committee on Taxation, General
Explanation of the Tax Reform Act of 1976, JCS-33-76, at 314 (Dec. 29,
1976) (“Apparently, tax information had been obtained by the White
House pertaining to a number of well known individuals for use for non-
tax purposes.”); 122 Cong. Rec. 24,013 (1976) (statement of Sen. Weick-
er) (observing that tax returns had become a “generalized governmental
asset” and the IRS was acting like a “lending library” to the rest of the
government).
In the Tax Reform Act of 1976, Congress established that “[r]eturns
and return information shall be confidential, . . . except as authorized by
this title.” 26 U.S.C. § 6103(a). Returns and return information (collec-
tively, “tax information”) are defined broadly. 2 Under this confidentiality
2 Returns are “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 “a taxpayer’s identity, the nature, source, or
amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabili-
ties, 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
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Congressional Committee’s Request for the President’s Tax Returns
rule, government officials with legitimate access to tax information may
not disseminate it without additional authorization. A willful unauthorized
disclosure is a felony, see id. § 7213(a)(1)–(2), and any person who will-
fully inspects tax information without authorization commits a misde-
meanor, see id. § 7213A. It is also a felony to willfully solicit tax infor-
mation, or to willfully “print or publish” it “in any manner not provided
by law.” Id. § 7213(a)(3)–(4). In addition, a taxpayer whose information
has been mishandled may seek civil damages against the United States or
the private persons responsible in certain circumstances. Id. § 7431.
The Secretary and the IRS Commissioner are the “gatekeepers of fed-
eral tax information.” Tax Analysts v. IRS, 117 F.3d 607, 613 (D.C. Cir.
1997); see 26 U.S.C. § 7801(a)(1) (providing that the Commissioner
performs his duties under the Secretary’s supervision); Treas. Order No.
150-10 (Apr. 22, 1982) (delegating general authority to administer the
tax laws to the Commissioner). The Secretary may prescribe the manner,
time, and place for inspection and disclosure, 26 U.S.C. § 6103(p)(1),
and must maintain records of such requests, as well as of the returns
inspected or disclosed, id. § 6103(p)(3). Congress has further imposed
strict confidentiality safeguards on all entities that receive tax infor-
mation. Id. § 6103(p)(4).
Congress has identified “thirteen tightly drawn categories of excep-
tions” to the confidentiality of return information. EPIC v. IRS, 910
F.3d 1232, 1237 (D.C. Cir. 2018); see 26 U.S.C. § 6103(c)–(o); see also
Congressional Access to Tax Returns Under 26 U.S.C. § 6103( f ), 1 Op.
O.L.C. 85, 90–91 (1977) (noting that section 6103 was “designed to
tighten the rules for disclosure” and “to restrict even congressional access
to tax information”). Some exceptions are phrased in mandatory terms.
See, e.g., 26 U.S.C. § 6103(f )(1), ( j)(1) (“the Secretary shall furnish”).
Others are permissive. See, e.g., id. § 6103(h)(5) (“the Secretary may
disclose”).
In this matter, Chairman Neal invoked the exception for the congres-
sional tax committees, which provides that, “[u]pon written request” of
the Chairman of the House Committee on Ways and Means, the Chairman
of the Senate Finance Committee, or the Chairman of the Joint Committee
on Taxation, “the Secretary shall furnish such committee with any return
or return information specified in such request.” Id. § 6103(f )(1). If the
tax information would identify a particular taxpayer, then it shall be
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).
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Opinions of the Office of Legal Counsel in Volume 43
disclosed only “in closed executive session” (i.e., out of public view),
absent the taxpayer’s consent. Id. But the three tax committees may
submit the tax information to the full Senate or the full House in public
session, resulting in public disclosure. Id. § 6103(f )(4)(A). This authority
differs from that available to other congressional committees, which when
authorized by a House or Senate resolution may inspect tax information
in closed executive session, id. § 6103(f )(3), and may transmit such
information to the full House or Senate only in closed executive session,
id. § 6103(f )(4)(B), preventing public disclosure.
The tax committees often rely upon section 6103(f )(1) to inspect tax
information, but such requests typically seek “statistical data to inform the
drafting of tax legislation.” Letter for Richard E. Neal, Chairman, Com-
mittee on Ways and Means, U.S. House of Representatives, from Steven
T. Mnuchin, Secretary of the Treasury at 1 (Apr. 23, 2019) (“April 23
Mnuchin Letter”); see, e.g., Staff of the Joint Committee on Taxation,
Disclosure Report for Public Inspection Pursuant to Internal Revenue
Code Section 6103(p)(3)(C) for Calendar Year 2018, JCX-21-19, at 3
(May 14, 2019) (recording “bulk master file data” disclosures to congres-
sional committees). We have identified only one instance in the four
decades since the Tax Reform Act of 1976 when a tax committee publicly
disclosed information about specific taxpayers that it had obtained under
section 6103(f ). In 2014, the Committee investigated allegations of IRS
misconduct concerning discrimination against certain conservative organ-
izations in reviewing their tax-exempt status. The Committee obtained tax
information about these organizations in connection with its investigation,
and some of that information was publicly released when the Committee
included it in a criminal referral. 3 There were, however, no indications
that the Committee had requested the organizations’ tax information for
the purpose of publicly disclosing it.
Congressional committees published personally identifiable tax infor-
mation on three other notable occasions before the 1976 reforms, but in
those instances, the Executive Branch released the information voluntari-
3 See George K. Yin, Preventing Congressional Violations of Taxpayer Privacy, 69
Tax Law. 103, 108–14 (2015); see also Markup of Referral to the Hon. Eric H. Holder,
Jr., Att’y Gen., of Former Internal Revenue Service Exempt Organizations Division
Director Lois G. Lerner for Possible Criminal Prosecution for Violations of One or More
Criminal Statutes Based on Evidence the Committee Has Uncovered in the Course of the
Investigation of IRS Abuses, H. Comm. on Ways & Means, 113th Cong., at 81 (Apr. 9,
2014) (statement of Rep. Kind) (expressing concern about creating a “very troubling
precedent” that the Committee could “start releasing this stuff publicly”).
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Congressional Committee’s Request for the President’s Tax Returns
ly. First, in 1924, the Joint Committee on Internal Revenue Taxation
sought and obtained tax information about alleged participants in the
Teapot Dome scandal. See S. Res. 185, 68th Cong., 65 Cong. Rec. 3702
(1924). That information was later published in the Congressional Rec-
ord. See 69 Cong. Rec. 9842–43 (1928). The disclosure was made pursu-
ant to a Treasury regulation, not section 6103(f )(4). See Inspection of
Returns, T.D. 3566, 26 Treas. Dec. Int. Rev. 54, 58 ¶ 13 (1924) (“Inspec-
tion of any return shall be afforded to any committee . . . by the Secretary
of the Treasury upon application duly made by the chairman of such
committee, pursuant to a resolution of Congress or either House[.]”). 4
Second, in 1970, information about Students for a Democratic Society
that had been obtained under a Treasury regulation was released in a
report by the Committee on Internal Security. 5 Third, in 1973, President
Nixon chose to release “his tax returns for every year from 1968 to 1972”
to the Joint Committee on Internal Revenue Taxation. Joseph J. Thorn-
dike, JCT Investigation of Nixon’s Tax Returns, Tax Notes, June 13, 2016,
at 1527, 1531. The Joint Committee later made public a staff report con-
taining tax information that Nixon had voluntarily disclosed. Id. at 1533.
Chairman Neal therefore has accurately stated that his request for Presi-
dent Trump’s tax information is without any precedent. See infra note 17
and accompanying text.
B.
Chairman Neal’s April 3 letter represents the culmination of a sustained
effort over more than two years to seek the public release of President
Trump’s tax returns. During the 2016 presidential campaign, then-
candidate Trump chose not to publicly release his tax returns. The Presi-
dent’s decision became a campaign issue, with his Democratic opponent
charging that “[h]e refuses to do what every other presidential candidate
in decades has done.” 6
After the 2016 election, the minority Members of the House continued
to press for the President’s tax returns. On January 12, 2017, a group of
21 Ranking Members of House committees (including Ranking Member
4 See also Yin, Preventing Congressional Violations of Taxpayer Privacy, 69 Tax Law.
at 121 & n.89.
5 See id. at 136 & n.166.
6 CNN, The Situation Room (television broadcast Aug. 12, 2016), http://www.cnn.com/
TRANSCRIPTS/1608/12/sitroom.01.html.
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Opinions of the Office of Legal Counsel in Volume 43
Neal) sent a letter to Speaker Paul Ryan requesting help in obtaining the
returns. 7 Three weeks later, Representative Bill Pascrell, Jr., requested
that the Ways and Means Committee obtain the President’s tax returns
under section 6103(f )(1) and then vote in closed session “to submit
[them] to the House of Representatives—thereby, if successful, making
them available to the public.” 8 The refrain was picked up by, among
others, Minority Leader Nancy Pelosi, who called for the Committee “to
demand Trump’s tax returns from the Secretary of the Treasury” and to
“hold a committee vote to make those tax returns public.” 9 She empha-
sized the unique authority of the Ways and Means Committee, explaining
that “[t]hey can ask for the president’s tax returns, and then by a vote in
their committee, they can decide where they should be released to the
public[.]” 10
On March 9, 2017, Representative Pascrell introduced a resolution
of inquiry that purported to “direct[]” the Secretary under section 6103(f )
to provide the House with ten years of President Trump’s tax returns,
from 2006 through 2015. See H.R. Res. 186, 115th Cong. (as introduced,
Mar. 9, 2017). Ranking Member Neal was an original co-sponsor of the
resolution, which soon acquired 92 co-sponsors, including every Demo-
crat then on the Ways and Means Committee and 19 of the 25 current
majority members. 11 On party lines, the Committee reported the resolution
7 Letter for Paul Ryan, Speaker, U.S. House of Representatives, from Elijah E. Cum-
mings, Ranking Member, Committee on Oversight and Government Reform, U.S. House
of Representatives, et al. at 6 (Jan. 12, 2017), https://oversight.house.gov/sites/democrats.
oversight.house.gov/files/documents/2017-01-12.Ranking%20Members%20to%20
Speaker%20Ryan%20Re.Trump_.pdf.
8 Letter for Kevin Brady, Chairman, Committee on Ways and Means, U.S. House
of Representatives, from Bill Pascrell, Jr., Member, Committee on Ways and Means,
U.S. House of Representatives at 2 (Feb. 1, 2017), https://pascrell.house.gov/news/
documentsingle.aspx?DocumentID=2195.
9 Transcript of House Democratic Leadership Press Conference at 2017 Issues Con-
ference (Feb. 8, 2017), https://www.speaker.gov/newsroom/282017/.
10 Press Conference, Minority Leader Nancy Pelosi, Reacting to Resignation of
National Security Advisor Michael Flynn (Feb. 14, 2017), https://www.speaker.gov/
newsroom/2142017/.
11 Compare H.R. Res. 186, 115th Cong. at 1–2 (as reported, Mar. 30, 2017) (listing co-
sponsors), with H.R. Rep. No. 115-73, at 4 (listing Committee Members in 2017), and
Chairman Richard Neal, Ways & Means Committee, Committee Members, https://
waysandmeans.house.gov/about/committee-members (last visited June 13, 2019) (listing
current Committee Members).
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Congressional Committee’s Request for the President’s Tax Returns
unfavorably on March 30, 2017, characterizing it as an “abuse of author-
ity” and “an invasion of privacy.” H.R. Rep. No. 115-73, at 3. The Com-
mittee explained that section 6103(f ) “does not authorize the House of
Representatives to receive confidential tax returns and return information
from the Secretary of the Treasury, as H. Res. 186 directs.” Id. at 2–3.
Rather, requests under section 6103(f ) must be made pursuant to “our
legislative responsibility to oversee the tax code.” Id. at 3. “[T]he purpose
of this resolution,” however, “is to single out one individual,” and, if the
resolution were followed, it “would be the first time the Committee exer-
cised its authority to wade into the confidential tax information of an
individual with no tie to any investigation within our jurisdiction.” Id.
Ranking Member Neal and Representative Pascrell filed dissenting
views to express “strong[] oppos[ition]” to the unfavorable report. Id. at
7–8. They complained that the President had “rebuked over 40 years of
tradition and refused to release his individual tax returns to the public.”
Id. They reiterated that, “[s]tarting in February [2017], Committee Demo-
crats began pressing Committee Republicans to use the authority under
Section 6103 to obtain President Trump’s tax returns and make them
available to the public.” Id. at 8. In their view, the Committee should
invoke section 6103(f ) to acquire the returns, then use section
6103(f )(4)(A) to submit them “to the House,” when, “[p]rocedurally, . . .
the tax return and return information would become available to the
public.” Id. They expressed their “sincerest hope that President Trump
will release his tax returns to the American public as virtually all presi-
dents have done since Richard Nixon.” Id. And they proclaimed that
“Committee Democrats remain steadfast in our pursuit to have [the Presi-
dent’s] individual tax returns disclosed to the public.” Id.
Throughout the rest of the 115th Congress, House Democrats repeated-
ly attempted to force the public release of the President’s tax returns. On
April 5, 2017, Minority Leader Pelosi held another press conference about
the President’s failure to release his tax returns, at which Ranking Mem-
ber Neal acknowledged: “This is not about the law, this is about custom
and practice. It’s a settled tradition [that] candidates reach the level of
expectation that they’re supposed to release their tax forms.” 12 Over the
next several months, House Members offered at least a half-dozen privi-
12 Pelosi Remarks at Press Conference on Demanding a Vote Requiring President
Trump to Release Tax Returns (Apr. 5, 2017) (remarks of Ranking Member Neal), https://
www.speaker.gov/newsroom/4517/.
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Opinions of the Office of Legal Counsel in Volume 43
leged resolutions to try to force the release of the tax returns. 13 In July
2017, Representative Pascrell introduced another resolution of inquiry,
see H.R. Res. 479, 115th Cong. (July 27, 2017), which the Committee
reported unfavorably in September 2017, see H.R. Rep. No. 115-309, at 4.
As with the earlier resolution, the Committee concluded that “[d]irecting
the Secretary of the Treasury to now break current law by violating the
confidentiality of tax return information is profoundly misguided.” Id.
at 3. Ranking Member Neal and Representative Pascrell again filed dis-
senting views on behalf of “Committee Democrats” who “remain[ed]
steadfast in [their] pursuit to have [the President’s] individual tax returns
disclosed to the public.” Id. at 7, 8. During 2018, House Democrats con-
tinued to seek the release of the President’s tax returns in public state-
ments, letters, and amendments to pending bills. 14
Shortly before the mid-term elections, Minority Leader Pelosi and
Ranking Member Neal promised that they would continue their pursuit of
the President’s tax returns if their party won a majority in the House. In
October 2018, Leader Pelosi stated that “[d]emanding the president’s tax
returns ‘is one of the first things we’d do—that’s the easiest thing in the
world.’” 15 And Representative Neal said he intended to “get the docu-
ments” if he became the Chairman of the Committee. 16 He did, however,
express some hesitation about precisely how he would proceed, conceding
that “[t]his has never happened before, so you want to be very meticu-
lous.” 17 After the Democrats won the majority in the mid-term elections,
13 See April 23 Mnuchin Letter app. B, at 8–33; Rep. Bill Pascrell, President Trump’s
Tax Returns, https://pascrell.house.gov/issues/president-trumps-tax-returns/ (last visited
June 13, 2019).
14 See April 23 Mnuchin Letter app. B, at 35–37; Rep. Bill Pascrell, President Trump’s
Tax Returns, https://pascrell.house.gov/issues/president-trumps-tax-returns/ (last visited
June 13, 2019).
15 John Wildermuth, Pelosi: Trump’s tax returns are fair game if Democrats win
House, S.F. Chron., Oct. 11, 2018, https://www.sfchronicle.com/politics/article/Pelosi-
Trump-s-tax-returns-are-fair-game-if-13297954. php.
16 See Richard Rubin, Trump’s Tax Returns in the Spotlight if Democrats Capture the
House, Wall St. J., Oct. 3, 2018, https://www.wsj.com/articles/trumps-tax-returns-in-the-
spotlight-if-democrats-capture-the-house-1538575880.
17 Id.; see also Lauren Fox, Leading Democrat on House Ways and Means would ask
for Trump’s tax returns, CNN, Oct. 12, 2018, https://www.cnn.com/2018/10/12/politics/
house-ways-mean-tax-retumsrichard-neal/index.html (“‘It is not cut and dry,’ Neal said,
noting that there was still plenty of discussion ahead for how and when to request the
returns officially.”).
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Congressional Committee’s Request for the President’s Tax Returns
incoming-Speaker Pelosi predicted that the Ways and Means Committee
would pursue the tax returns, but she “cautioned that securing them is ‘a
little more challenging than you might think.’” 18
To sum up, throughout 2017 and 2018, Chairman Neal and other Mem-
bers of Congress made clear their intent to acquire and release the Presi-
dent’s tax returns. They offered many different justifications for such an
action, suggesting that releasing the returns would “honor tradition,” show
“what the Russians have on Donald Trump,” reveal a potential “Chinese
connection,” inform tax reform legislation, provide the “clearest picture of
his financial health,” and expose any alleged emoluments received from
foreign governments. 19 But oversight of “the extent to which the IRS
audits and enforces the Federal tax laws against a President” had never
been the focus of their demands. April 3 Neal Letter at 1.
18 John Wagner, Pelosi says she expects a House committee will ‘take the first steps’
toward obtaining Trump’s tax returns, Wash. Post, Dec. 13, 2018, https://www.
washingtonpost.com/powerpost/pelosi-says-she-expects-a-house-committee-will-take-the-
first-steps-toward-obtaining-trumps-tax-returns/2018/12/13/fbc02660-feec-11e8-862a-
b6a6f3ce8199_story.html.
19 See April 23 Mnuchin Letter app. A, at 3–4; see also, e.g., id. app. B, at 2 (quoting
Ranking Member Neal: the tax returns would “help protect against violations of the
Emoluments Clause of the Constitution and conflicts of interest, including with foreign
adversaries such as Russia”); id. app. B, at 7 (quoting Rep. Pascrell: “Why won’t Repub-
lican members of Congress use their authority in the law to provide oversight and make
sure the president and his family are not hiding financial ties that could cause conflicts in
the decision-making?”); id. app. B, at 8, 11 (quoting resolutions introduced by Reps.
Pascrell and Eshoo: “disclosure of the President’s tax returns could help those investigat-
ing Russian influence in the 2016 election”); id. app. B, at 15 (quoting Ranking Member
Neal and Rep. Pascrell: “Tax returns provide the clearest picture of a president’s financial
health” and will allow the public “to gain a more complete understanding of how tax
reform will benefit President Trump and his vast business empire.”); id. app. B, at 19
(quoting Leader Pelosi discussing the “Chinese connection” and explaining, “there’s
concerns about recent actions by the Chinese government, in relation to the Trump
Organization”); id. app. B, at 21 (quoting Leader Pelosi: “We think [the returns] will
show us some connection that will be useful in the investigation of what do the Russians
have on Donald Trump politically, personally, financially.”); id. app. B, at 22 (quoting
Rep. Jeffries: “The release of the President’s tax returns will help the American people
better understand the extent of Trump’s financial ties to Putin’s Russia.”); id. app. B, at
31 (quoting Leader Pelosi: “By blatantly refusing to reveal his tax returns, the President
fails to fulfill his promise to the American people, honor tradition, and be transparent
about his financial history.”).
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Opinions of the Office of Legal Counsel in Volume 43
C.
After Representative Neal became Chairman, he confirmed that the
Committee would pursue the public release of President Trump’s tax
returns, because “the public has reasonably come to expect that presiden-
tial candidates and aspirants release those documents,” but he cautioned
that “[w]e need to approach this gingerly and make sure the rhetoric that
is used does not become a footnote to the court case.” 20 On February 7,
2019, the Subcommittee on Oversight held a hearing to consider “whether
a President, vice president, or any candidate for these office[s] should be
required by law to make their tax return available to the public.” Legisla-
tive Proposals and Tax Law Related to Presidential and Vice-Presidential
Tax Returns: Hearing Before the Subcomm. on Oversight of the H. Comm.
on Ways & Means, 116th Cong., Serial No. 116-3, at 8 (Feb. 7, 2019)
(statement of Subcommittee Chairman Lewis). As one Member explained
on television that day, the subcommittee hearing was intended to “lay the
foundation for the public purpose to acquire access to these returns.” 21
On April 3, 2019, Chairman Neal announced that the Committee had
“completed the necessary groundwork for a request of this magnitude”
and that he felt “certain we are within our legitimate legislative, legal, and
oversight rights.” 22 Two days later, Chairman Neal explained that the
Committee had “constructed” a “case” for the tax returns that he hoped
“would stand up under the critical scrutiny of the federal courts.” 23
The Chairman explained this “case” in his April 3 letter formally re-
questing the returns. Invoking 26 U.S.C. § 6103(f ), the Chairman request-
ed that, within one week, the IRS produce the President’s individual tax
returns and those of eight associated business entities for the past six
years (tax years 2013 through 2018). April 3 Neal Letter at 1–2. The letter
20 Mark Sullivan, Powerful Ways and Means chairman Neal to pursue Trump’s tax
returns, Telegram & Gazette, Jan. 23, 2019, https://www.telegram.com/news/20190123/
powerful-ways-and-means-chairman-neal-to-pursue-trumps-tax-returns. Chairman Neal
also stated: “We are now in the midst of putting together the case.” Id.21 MSNBC, All In with Chris Hayes (transcript of television broadcast Feb. 7, 2019),
http://www.msnbc.com/transcripts/all-in/2019-02-07 (statement of Rep. Dan Kildee).
22 Chairman Richard Neal, Ways & Means Committee, Neal Statement on Requesting
President Trump’s Tax Returns (Apr. 3, 2019), https://waysandmeans.house.gov/media-
center/press-releases/neal-statement-requesting-president-trump-s-tax-returns.
23 Sunlen Serfaty et al., CNN, Republicans Warn Trump Tax Request ‘Sets A Danger-
ous Standard’ and Accuse Dems of Weaponizing IRS (Apr. 5, 2019), https://www.cnn.
com/2019/04/04/politics/trump-tax-returns-request-republicans-congress/index.html.
12
Congressional Committee’s Request for the President’s Tax Returns
also requested information about the returns’ audit histories and all asso-
ciated “administrative files (workpapers, affidavits, etc.).” Id. According
to the Chairman, “the Committee is considering legislative proposals and
conducting oversight related to our Federal tax laws, including, but not
limited to, the extent to which the IRS audits and enforces the Federal tax
laws against a President.” Id. at 1. The Chairman recognized that IRS
policy subjects every President’s individual income tax returns to a man-
datory audit. Id. 24 He said the requested documents were “necessary” for
the Committee “to determine the scope of any such examination and
whether it includes a review of underlying business activities required to
be reported on the individual income tax return.” Id. The Chairman did
not address what the Committee would do with the tax returns upon their
receipt. See id. at 1–2.
After the Secretary informed Chairman Neal that he would consult with
the Department of Justice about the novel request, the Chairman advised
that the Executive could not “second guess the motivations of the Com-
mittee or its reasonable determinations regarding its need for the request-
ed tax returns and return information.” Letter for Charles P. Rettig, Com-
missioner, Internal Revenue Service, from Richard E. Neal, Chairman,
Committee on Ways and Means, U.S. House of Representatives at 2
(Apr. 13, 2019) (“April 13 Neal Letter”). In his view, the Committee was
entitled to a presumption of regularity and “concerns about what the
Committee may do with the tax returns and return information are base-
less.” Id. He set a new deadline of April 23 to “provide the requested tax
returns and return information.” Id.On April 23, the Secretary informed the Committee that Treasury was
continuing its consultations with the Department of Justice and would
decide the request by May 6. See April 23 Mnuchin Letter at 1. The
Secretary noted that the Chairman’s section 6103(f ) request was “categor-
ically different” from the “overwhelming majority of [congressional]
requests for tax return information,” which “seek statistical data to inform
the drafting of tax legislation.” Id. Here, by contrast, the Committee
“seeks the returns of a single individual taxpayer for an asserted purpose
that is at odds with what you and many others have repeatedly said is the
request’s intent: to publicly release the President’s tax returns.” Id. The
Secretary detailed his concerns about the Chairman’s interpretation of
24 Under IRS policy since 1977, “[i]ndividual income tax returns for the President and
Vice President are subject to mandatory examinations [i.e., audits].” Internal Revenue
Manual § 3.28.3.4.3, ¶ 1 (Jan. 1, 2019).
13
Opinions of the Office of Legal Counsel in Volume 43
section 6103(f ) and the apparently pretextual justification for the request.
Id. at 4–5. In support, the Secretary attached 47 pages of appendices,
which chronicled “a long-running, well-documented effort to expose the
President’s tax returns for the sake of exposure.” Id. at 3; see also id.
apps. A & B. As the Secretary summarized:
Because Congress may only conduct investigations to further a le-
gitimate legislative purpose, Congressional investigations ordinarily
begin with a legislative purpose, and that purpose defines the scope
of the documents that are pertinent to the Committee’s investigation.
But here, by the Committee’s own admission, the Committee’s in-
vestigation began in the opposite direction. The Committee started
with the documents it planned to obtain and release (the President’s
tax returns), and then it sought—in Chairman Neal’s words—to
“construct[]” a “case” for seeking the documents that would appear
to be in furtherance of a legitimate legislative purpose.
The Committee knew that exposure for the sake of exposure
would not be a legitimate purpose, and so the Committee could no
longer rely upon prior statements to that effect.
Id. app. A, at 4–5 (footnotes omitted). Despite those concerns, the Secre-
tary explained that, “[t]o the extent the Committee wishes to understand,
for genuine oversight purposes, how the IRS audits and enforces the
Federal tax laws against a President,” Treasury stood ready to “provid[e]
additional information on the mandatory audit process.” Id. at 5.
On May 6, Treasury formally denied the Committee’s request. See Let-
ter for Richard E. Neal, Chairman, Committee on Ways and Means, U.S.
House of Representatives, from Steven T. Mnuchin, Secretary of the
Treasury at 1 (May 6, 2019) (“May 6 Mnuchin Letter”); Letter for Rich-
ard E. Neal, Chairman, Committee on Ways and Means, U.S. House of
Representatives, from Charles P. Rettig, Commissioner of Internal Reve-
nue (May 6, 2019). The Secretary had concluded that the Committee’s
proffered reason was pretextual. In reliance on this Office’s advice, he
further concluded that the Committee’s true purpose—the public disclo-
sure of the President’s tax returns—fell outside Congress’s constitutional
power of inquiry, and that section 6103(f ) would not authorize disclosure.
Id. The Secretary renewed his “offer to provide information concerning
the Committee’s stated interest in how the IRS conducts mandatory exam-
inations of Presidents.” Id.
Four days later, the Committee served subpoenas on the Secretary and
the IRS Commissioner seeking the President’s tax returns. See, e.g.,
14
Congressional Committee’s Request for the President’s Tax Returns
Subpoena to the Honorable Steven T. Mnuchin, Secretary, Department of
the Treasury, Schedule A (May 10, 2019). In an accompanying letter,
Chairman Neal denied the charge of pretext and reiterated his claim that
the Committee was conducting oversight related 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, and
Steven T. Mnuchin, Secretary of the Treasury, from Richard E. Neal,
Chairman, Committee on Ways and Means, U.S. House of Representa-
tives at 2 (May 10, 2019) (“May 10 Neal Letter”). Although the Chairman
expressed concern about “the President’s ability to influence” the audit
process, he rejected the Secretary’s offer of an accommodation that would
supply information responsive to that concern, stating that information
concerning the IRS’s audit practices “is not a substitute for the requested
tax returns.” Id. at 3.
On May 17, the Secretary and the IRS Commissioner declined to pro-
duce the records in response to the subpoenas based on the earlier conclu-
sion that the Committee lacked a legitimate legislative purpose. See Letter
for Richard E. Neal, Chairman, Committee on Ways and Means, U.S.
House of Representatives, from Steven T. Mnuchin, Secretary of the
Treasury at 1 (May 17, 2019) (“May 17 Mnuchin Letter”); Letter for
Richard E. Neal, Chairman, Committee on Ways and Means, U.S. House
of Representatives, from Charles P. Rettig, Commissioner of Internal
Revenue at 1 (May 17, 2019) (“May 17 Rettig Letter”). The Secretary had
previously “offered to work with the Committee to accommodate its
stated interest in understanding how the IRS audits and enforces the
Federal tax laws against a President by providing the Committee with
additional information on the mandatory audit process.” May 17 Mnuchin
Letter at 1. But the Committee had declined those offers. The Secretary
reiterated that this accommodation “would provide information that
directly bears upon what the Committee has stated to be its legislative
interest in this subject.” Id. In a separate letter, the IRS Commissioner
provided some of that information in order to inform the Committee that
its stated concerns about improper influence on the audit process were
unfounded. May 17 Rettig Letter at 1–2. 25
25 After repeatedly rejecting the Secretary’s offered accommodation, Chairman Neal
reversed course on May 22 and invited Treasury to provide whatever additional infor-
mation it chose. See E-mail for Office of Legislative Affairs, Department of the Treasury,
et al., from Staff Director, Subcommittee on Oversight, Committee on Ways and Means
(May 22, 2019) (“It is unclear from the [Department’s] letters exactly what type of
15
Opinions of the Office of Legal Counsel in Volume 43
II.
The plain language of 26 U.S.C. § 6103(f )(1) does not require a tax
committee to provide any purpose in support of its request for tax infor-
mation. 26 Yet the Committee has repeatedly labored to justify its request
for six years of the President’s returns. 27 The Committee’s perceived need
to articulate such a justification reflects the fact that the Constitution
limits the power that Congress may confer upon its agents. Because each
House establishes congressional committees solely to carry out its legisla-
tive functions, the Committee may request confidential information from
the Executive Branch only to further a legitimate legislative purpose.
While the Executive Branch should accord due deference and respect to
a committee’s request, the Committee’s stated purpose in the April 3
letter blinks reality. It is pretextual. No 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
additional information Treasury and the IRS intend to provide to [the] Committee. If there
are documents or other written materials that Treasury and the IRS would like to provide,
please feel free to send those documents to me. If the intent is to provide a briefing,
Committee staff is available to meet this week in our offices.”). On June 10, senior IRS
officials provided the Committee’s staff with a three-hour briefing on the presidential
audit process, and Treasury offered to continue to address the Committee’s stated interest
if it had further questions about the audit process. See Letter for Richard E. Neal, Chair-
man, Committee on Ways and Means, U.S. House of Representatives, from Frederick W.
Vaughan, Deputy Assistant Secretary, Office of Legislative Affairs, Department of the
Treasury (June 10, 2019).
26 By contrast, other exceptions under section 6103 do expressly require a showing of
purpose. 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”), ( j)(1) (permitting disclosure to certain officials in the Department of Commerce
“for the purpose of, but only to the extent necessary in, the structuring of censuses and
national economic accounts and conducting related statistical activities authorized by
law”), (k)(5) (permitting disclosure to state agencies regulating tax return preparers “only
for purposes of the licensing, registration, or regulation of tax return preparers”).
27 See April 3 Neal Letter at 1 (stating that the Committee’s request was “necessary . . .
to determine the scope of any [mandatory presidential audit] examination and whether it
includes a review of underlying business activities required to be reported on the individ-
ual income tax return”); April 13 Neal Letter at 1 (stating, in response to the Secretary’s
suggestion that the Committee lacked a legitimate legislative purpose, that the “request is
in furtherance of consideration . . . of legislative proposals and oversight related to our
Federal tax laws”); May 10 Neal Letter at 1 (subheading: “The Committee Has a Legiti-
mate Legislative Purpose”).
16
Congressional Committee’s Request for the President’s Tax Returns
process. The Committee’s request reflects the next assay in a long-
standing political battle over the President’s tax returns. Consistent with
their long-held views, Chairman Neal and other majority members have
invoked the Committee’s authority to obtain and publish these returns.
Recognizing that the Committee may not pursue exposure for exposure’s
sake, however, the Committee has devised an alternative reason for the
request.
The Committee’s request presents a stark legal question. When faced
with a congressional request for confidential taxpayer information, must
the Secretary close his eyes and blindly accept a pretextual justification
for that request? Or must the Secretary implement the statute in a manner
faithful to constitutional limitations? We believe that the Executive’s duty
to “take Care that the Laws be faithfully executed,” U.S. Const. art. II,
§ 3, permits only one answer. Where, as 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. In
doing so, Treasury acts as part of a politically accountable branch with a
constitutional duty to resist legislative intrusions upon executive power
and therefore does not act under the same institutional constraints as the
Judiciary. Here, because the Committee lacked a legitimate legislative
purpose, its request did not qualify for the statutory exception to taxpayer
confidentiality, and the law required Treasury to deny that request.
A.
Congress granted the Ways and Means Committee the authority to ob-
tain confidential tax information under section 6103(f ). It is axiomatic,
however, that “Congress cannot grant to an officer under its control what
it does not possess.” Bowsher v. Synar, 478 U.S. 714, 726 (1986). The
Committee’s authority under section 6103(f ) therefore may not exceed
the constitutional limitations on congressional power, which require that
any committee investigation must serve a legitimate legislative purpose.
The Constitution vests certain “legislative Powers” in Congress. U.S.
Const. art. I, § 1. Those legislative powers do not expressly include the
“power to investigate,” but such a power is “inherent in the power to
make laws.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504
(1975); see also McGrain v. Daugherty, 273 U.S. 135, 161 (1927) (“In
actual legislative practice, power to secure needed information . . . has
long been treated as an attribute of the power to legislate.”). Thus, “Con-
17
Opinions of the Office of Legal Counsel in Volume 43
gress may conduct investigations in order to obtain facts pertinent to
possible legislation and in order to evaluate the effectiveness of current
laws.” Scope of Congressional Oversight and Investigative Power with
Respect to the Executive Branch, 9 Op. O.L.C. 60, 60 (1985); see also
Quinn v. United States, 349 U.S. 155, 160 (1955) (the investigative power
is “co-extensive with the power to legislate”). Congress’s investigative
authority also “comprehends probes into departments of the Federal
Government to expose corruption, inefficiency, or waste.” Watkins v.
United States, 354 U.S. 178, 187 (1957). But this “power to investigate
must not be confused with any of the powers of law enforcement.” Quinn,
349 U.S. at 161.
The Supreme Court further has made clear that, “broad as is this power
of inquiry, it is not unlimited,” because any congressional inquiry “must
be related to, and in furtherance of, a legitimate task of the Congress.”
Watkins, 354 U.S. at 187; see Eastland, 421 U.S. at 504 n.15 (the “bound-
aries” of Congress’s power to investigate “are defined by its source”);
Barenblatt v. United States, 360 U.S. 109, 111 (1959); see also Alissa M.
Dolan et al., Cong. Research Serv., RL30240, Congressional Oversight
Manual 25 (Dec. 19, 2014) (“A committee’s inquiry must have a legisla-
tive purpose or be conducted pursuant to some other constitutional power
of Congress[.]”). As relevant here, the Court has articulated one signifi-
cant constraint on Congress’s investigative powers. “[T]here is no con-
gressional power to expose for the sake of exposure.” Watkins, 354 U.S.
at 200. In other words, “there is simply ‘no general authority to expose
the private affairs of individuals without justification in terms of the
functions of Congress.’” Doe v. McMillan, 412 U.S. 306, 330 (1973)
(quoting Watkins, 354 U.S. at 187); see also, e.g., Quinn, 349 U.S. at 161(“[T]he power to investigate . . . . cannot be used to inquire into private
affairs unrelated to a legislative purpose.”); McGrain, 273 U.S. at 173(“[N]either house is invested with ‘general’ power to inquire into private
affairs and compel disclosure[.]”); Kilbourn v. Thompson, 103 U.S. 168,
190 (1880) (neither the House nor the Senate “possesses the general
power of making inquiry into the private affairs of the citizen”).
Although Congress’s investigative authority is sometimes described as
including a so-called “informing function,” that function is merely “the
power of the Congress to inform itself ” of the facts needed to carry out
legislative affairs. Watkins, 354 U.S. at 216 (emphasis added). The in-
forming function does not grant Congress an independent authority to
obtain and publicize confidential information. As the Court has made
clear, “[v]aluable and desirable as it may be in broad terms, the transmit-
18
Congressional Committee’s Request for the President’s Tax Returns
tal of such information . . . in order to inform the public . . . is not a part
of the legislative function.” Hutchinson v. Proxmire, 443 U.S. 111, 133
(1979); see Miller v. Transamerican Press, Inc., 709 F.2d 524, 531 (9th
Cir. 1983) (“The ‘informing function’ of Congress is that of informing
itself about subjects susceptible to legislation, not that of informing the
public.”); McSurely v. McClellan, 553 F.2d 1277, 1285–86 (D.C. Cir.
1976) (en banc) (“disseminat[ing] to the public beyond ‘the legitimate
legislative needs of Congress’” is not encompassed within Congress’s
“legislative activity”). The Court has therefore explained that “neither the
investigatory nor, indeed, the informing function of Congress authorizes
any ‘congressional power to expose for the sake of exposure.’” McMillan,
412 U.S. at 330 (quoting Watkins, 354 U.S. at 200). And this Department
has issued an opinion making the same point, observing that “Congress’s
legislative function does not imply a freestanding authority to gather
information for the sole purpose of informing ‘the American people.’”
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) (opinion of Attorney General Eric H.
Holder, Jr.).
Because Congress may not authorize its agents to wield powers in ex-
cess of its own, section 6103(f ) could not confer upon a tax committee a
right to obtain confidential information that did not serve a legitimate
legislative purpose. Congress could enact legislation that makes tax re-
turns available to the public at large, but it has chosen instead to make
them confidential and to prohibit Treasury from releasing them to unau-
thorized persons. Lacking any role in implementing the laws itself, Con-
gress may confer upon its agents a right to request and receive confiden-
tial information only to the extent necessary to serve a legitimate legisla
tive end. See Bowsher, 478 U.S. at 733–34 (“[O]nce Congress makes its
choice in enacting legislation, its participation ends. Congress can there-
after control the execution of its enactment only indirectly—by passing
new legislation.”). Therefore, despite the mandatory language of section
6103(f ), we believe that the Constitution requires that the Committee
establish a legitimate legislative purpose in support of its request for the
President’s tax returns. 28
28The Congressional Research Service apparently agrees with this conclusion. See
David H. Carpenter et al., Cong. Research Serv., LSB10275, Congressional Access to the
President’s Federal Tax Returns 2 (updated May 7, 2019) (recognizing that, despite the
“plain language of Section 6103(f ),” requests for tax returns under that provision “must
19
Opinions of the Office of Legal Counsel in Volume 43
B.
While implicitly recognizing the need for a legislative purpose, Chair-
man Neal contends that the Executive may not “question or second guess”
the Committee’s “reasonable determinations regarding its need for the
requested tax returns and return information.” April 13 Neal Letter at 2.
But the same constitutional limitations that constrain the Committee’s
investigative authority prevent the Executive from treating the Chairman’s
word on the matter as unquestionable. Just as Congress may not empower
its agents to exceed the boundaries of legitimate legislative power, an
assertion from a committee chairman may not prevent the Executive from
confirming the legitimacy of an investigative request. Were it otherwise,
the Secretary of the Treasury would effectively be delegating his own
obligation to faithfully execute the laws to the committee chairman.
Section 6103 charges the Secretary with the “duty of protecting return
information from disclosure to others within the federal government,
and to the public at large.” Tax Analysts v. IRS, 117 F.3d 607, 613
(D.C. Cir. 1997) (emphasis added). Treasury is the repository of federal
tax information, which consists largely of returns “filed with the Secre-
tary,” 26 U.S.C. § 6103(b)(1), and other information “received by, rec-
orded by, prepared by, furnished to, or collected by the Secretary,” id.§ 6103(b)(2)(A). The Secretary is also charged with disclosing return
information to those authorized to receive it. The exceptions to the gen-
eral rule of taxpayer confidentiality are themselves phrased as instructions
to “[t]he Secretary” (and his delegees). Id. § 6103(c)–(o). Thus, the Secre-
tary must decide, in the first instance, whether a request meets the “pre-
conditions” for any exception, and, if so, how to exercise his statutory
authority. EPIC v. IRS, 910 F.3d 1232, 1242 (D.C. Cir. 2018). The statu-
tory scheme would make little sense (and would provide scant guarantee
of taxpayer confidentiality) if a requester were the sole arbiter of whether
an exception had been satisfied.
This framework remains the same no matter whether the relevant limit
on the request flows from the statute or from the Constitution. The need
for Treasury to exercise judgment in making those decisions is necessarily
at its peak when deferring to the request would effectively surrender the
Executive’s obligations to a Member of Congress. When separating pow-
ers under the Constitution, the Founders’ “primary fears were directed
further a ‘legislative purpose’ and not otherwise breach relevant constitutional rights or
privileges”).
20
Congressional Committee’s Request for the President’s Tax Returns
toward congressional self-aggrandizement.” The Constitutional Separa-
tion of Powers Between the President and Congress, 20 Op. O.L.C. 124,
131 (1996); see also Mistretta v. United States, 488 U.S. 361, 411 n.35
(1989) (noting the “special danger recognized by the Founders of con-
gressional usurpation of Executive Branch functions”). The tripartite
structure of the federal government was intended to act as a “self-
executing safeguard against the encroachment or aggrandizement of one
branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1, 122
(1976) (per curiam). Thus, Congress and its agents are forbidden from
exercising authority beyond the legislative process and “from intervening
in the decision making necessary to execute the law.” The Constitutional
Separation of Powers, 20 Op. O.L.C. at 131.
Allowing a congressional committee to dictate when Treasury must
keep tax information confidential and when it must disclose such infor-
mation would impermissibly intrude on executive power by ceding con-
trol to the Committee over ensuring that section 6103 is implemented in
a manner consistent with the constitutional limitations. See, e.g., Bowsher,
478 U.S. at 733–34 (declaring unconstitutional a statute purporting to
allow the Comptroller General, a congressional agent, to “command[] the
President himself to carry out . . . the directive of the Comptroller Gen-
eral”). In order to comply with the duty to faithfully execute the laws,
U.S. Const. art. II, § 3, and to protect the Executive against legislative
encroachments, Treasury must have the authority to determine whether
a congressional request to disclose confidential tax information under
section 6103(f ) is within the appropriate scope of Congress’s constitu-
tional authority, and in particular, whether the request has been made in
furtherance of a legitimate legislative purpose.
This approach to section 6103 is consistent with how the Executive
Branch addresses congressional requests for information in connection
with congressional oversight. This Office has long advised that “a thresh-
old inquiry that should be made [by the Executive] upon receipt of any
congressional request for information is whether the request is supported
by any legitimate legislative purpose.” Response to Congressional Re-
quests for Information Regarding Decisions Made Under the Independent
Counsel Act, 10 Op. O.L.C. 68, 74 (1986) (emphasis added). As then-
Assistant Attorney General William Barr explained, the Executive Branch
will assess its “interest in keeping [requested] information confidential”
only after “it is established that Congress has a legitimate legislative
purpose for its oversight inquiry.” Congressional Requests for Confiden-
tial Executive Branch Information, 13 Op. O.L.C. 153, 154 (1989). As a
21
Opinions of the Office of Legal Counsel in Volume 43
result, “Congress’ duty to articulate its need for particular materials—to
‘point[] to . . . specific legislative decisions that cannot responsibly be
made without access to materials uniquely contained in’ the privileged
document it has requested”—is a mainstay of the accommodation process.
Id. at 159 (quoting Senate Select Comm. on Presidential Campaign Activi-
ties v. Nixon, 498 F.2d 725, 733 (D.C. Cir. 1974) (en banc)); see also
Assertion of Executive Privilege in Response to a Congressional Subpoe-
na, 5 Op. O.L.C. 27, 31 (1981) (opinion of Attorney General William
French Smith) (describing the Executive Branch’s obligation to accom-
modate “[i]n cases in which the Congress has a legitimate need for infor-
mation that will help it legislate”).
In many circumstances, Treasury will not need to engage in close scru-
tiny of a congressional committee’s request under section 6103(f ), be-
cause the underlying, legitimate purpose will be self-evident. But the
separation of powers dictates that a congressional request cannot require
the agency to close its eyes to overwhelming evidence that a congression-
al committee’s stated purpose is a pretext for an illegitimate one. If a
committee does not provide any purpose to justify its request, then Treas-
ury may request that the committee provide one. Given the criminal
penalties for the unauthorized and willful inspection or disclosure of tax
information, see 26 U.S.C. §§ 7213, 7213A, Treasury officials are within
their rights to assure themselves that any disclosures are appropriately
authorized.
That Treasury has the duty to implement section 6103 in a manner con-
sistent with constitutional limitations should hardly generate controversy.
Indeed, this approach is not only consistent with the constitutional separa-
tion of powers, but it also furthers the purposes underlying section 6103
itself. Congress reformed the system of taxpayer confidentiality in 1976
precisely to prevent the kinds of politically motivated abuses of authority
that Congress feared would compromise the integrity of the federal tax-
return system. See, e.g., S. Rep. No. 94-938, at 317. Treasury’s review of
a congressional committee request, particularly one involving personally
identifiable tax information, helps ensure against any breaches of those
protections for the personal privacy of taxpayers.
C.
In urging Treasury not to “second guess” the Committee’s request for
the President’s tax returns, Chairman Neal contends that “the Supreme
Court has consistently noted that the motivations underlying Congres-
22
Congressional Committee’s Request for the President’s Tax Returns
sional action are not to be second guessed, even by the courts.” April 13
Neal Letter at 2 (emphasis added). That assertion rests upon a misunder-
standing of the Court’s precedents. The courts have never abdicated their
responsibility to review the authority underlying the congressional sub-
poena. But even where courts have expressed reluctance to probe congres-
sional motivations in political disputes, they have done so for reasons that
do not apply to review by the Executive Branch. Simply deferring to
Congress’s assertions would constitute an abdication of the Executive
Branch’s own constitutional responsibilities.
The Supreme Court has specifically rejected the proposition that a court
may not police the boundaries of congressional inquiries. In Watkins, for
example, the Supreme Court declined to “assume . . . that every congres-
sional investigation is justified by a public need that overbalances any
private rights affected.” 354 U.S. at 198. The House Un-American Activi-
ties Committee had claimed to be inquiring into Communist infiltration in
labor. Id. at 212–14. But the Court found otherwise. After “[l]ooking at
the entire hearings,” it found “strong reason to doubt that the subject
revolved about labor matters,” noting that the title of the published tran-
script referred to “Communist Activities” without any reference to labor,
and that “six of the nine witnesses had no connection with labor at all.”
Id. at 213. Significantly, the Court rejected the committee’s argument that
its inquiry must be sustained so long as there could have been any legisla-
tive purpose to support the committee’s inquiry. Id. at 204.
Similarly, in Kilbourn, although Congress asserted a purpose for its in-
vestigation (enforcing the payment of a debt), the Court did not treat that
asserted purpose as conclusive. Instead, the Court examined the House
resolution and concluded that the committee’s purpose was not a valid
legislative purpose because it was more judicial in nature. 103 U.S. at
194. And in United States v. Rumely, 345 U.S. 41 (1953), the Court af-
firmed the reversal of a conviction for contempt of Congress because the
Court refused to read a committee’s authority to investigate lobbying
activities as extending to an individual who did not directly lobby Con-
gress. Id. at 47. And it did so even though the resolution authorizing the
inquiry and the Chairman’s statement of purpose “ma[de] plain” that the
committee sought “to probe the sources of support of lobbyists,” includ-
ing those who sought to influence “directly or indirectly, the passage or
defeat of any legislation by the Congress,” id. at 53–54 (Douglas, J.,
concurring) (emphasis added). The Court refused to be “that blind court
. . . that does not see what all others can see and understand” and does not
“know that there is wide concern, both in and out of Congress, over some
23
Opinions of the Office of Legal Counsel in Volume 43
aspects of the exercise of the congressional power of investigation.” Id. at
44 (internal quotation marks and brackets omitted).
Moreover, when affirming the legitimacy of legislative purposes, courts
have sometimes noted that there had not been any suggestion of a poten-
tially improper purpose. In McGrain, for instance, the Court inferred
from Senate resolutions that an investigation’s object was “to obtain
information for legislative purposes,” but the Court expressly noted that
“[i]t is not as if an inadmissible or unlawful object were affirmatively and
definitely avowed” in the authorizing resolutions or committee proceed-
ings. 273 U.S. at 177, 180. And in United States v. American Telephone &
Telegraph Co., 551 F.2d 384 (D.C. Cir. 1976), the court observed that the
parties conceded that a House subcommittee was “inquiring into a suitable
area of federal legislation,” and expressly noted the absence of any “alle-
gation that Congress is seeking to ‘expose for the sake of exposure.’” Id.
at 393 (quoting Watkins, 354 U.S. at 200).
Where courts have declined to engage in searching inquiries about con-
gressional motivation, they have phrased their reluctance in terms of the
institutional limits on the Judicial Branch. As the Supreme Court has
explained: “In times of political passion, dishonest or vindictive motives
are readily attributed to legislative conduct and as readily believed. Courts
are not the place for such controversies. Self-discipline and the voters
must be the ultimate reliance for discouraging or correcting such abuses.”
Tenney v. Brandhove, 341 U.S. 367, 378 (1951) (footnote omitted). As a
result, “courts should not go beyond the narrow confines of determining
that a committee’s inquiry may fairly be deemed within its province.” Id.(emphasis added); see also, e.g., Watkins, 354 U.S. at 200 (“Such is not
our function.”) (emphasis added); Barenblatt, 360 U.S. at 132 (“So long
as Congress acts in pursuance of its constitutional power, the Judiciary
lacks authority to intervene on the basis of the motives which spurred the
exercise of that power.” (emphasis added)); Eastland, 421 U.S. at 509(“The wisdom of congressional approach or methodology is not open to
judicial veto.”) (emphasis added). 29
29 A district court recently applied the same judicial presumption in declining to block
the enforcement of a different House committee’s subpoena to Mazars USA LLP, an
accounting firm, for financial records relating to President Trump and associated business
entities. See Trump v. Comm. on Oversight & Reform of the U.S. House of Representa-
tives, No. 19-cv-1136, 2019 WL 2171378 (D.D.C. May 20, 2019), appeal docketed, No.
19-5142 (D.C. Cir. May 21, 2019). The district court recognized that Congress’s investi-
gative powers have limits, and that there is no congressional authority to expose for the
24
Congressional Committee’s Request for the President’s Tax Returns
The Court’s decisions in this area rest upon institutional constraints on
the Judiciary that militate in favor of deference to the decisions of the
political branches of government. Absent a threat to an identified constitu-
tional right, “a legislative choice is not subject to courtroom factfinding
and may be based on rational speculation unsupported by evidence or
empirical data.” FCC v. Beach Communications, Inc., 508 U.S. 307, 315
(1993); see also Trump v. Hawaii, 138 S. Ct. 2392, 2420 (2018) (“Given
the standard of review, it should come as no surprise that the Court hardly
ever strikes down a policy as illegitimate under rational basis scrutiny.”);
Marshall Field & Co. v. Clark, 143 U.S. 649, 673 (1892) (deeming “for-
bidden by the respect due to a coördinate branch of the government”
“[ j]udicial action” requiring a belief in a “deliberate conspiracy” by the
Senate and House of Representatives “to defeat an expression of the
popular will”).
Separated from the democratic process, the federal courts are not well
equipped to second-guess the action of the political branches by close
scrutiny of their motivations. This is why the Supreme Court has recog-
nized that, so long as Congress “acts in pursuance of its constitutional
power, the Judiciary lacks authority to intervene on the basis of the mo-
tives which spurred the exercise of that power.” Barenblatt, 360 U.S. at
132 (emphasis added). “The Constitution presumes that, absent some
reason to infer antipathy, even improvident decisions will eventually be
rectified by the democratic process and that judicial intervention is gener-
ally unwarranted no matter how unwisely we may think a political branch
has acted.” Beach Communications, 508 U.S. at 314 (internal quotation
marks and citation omitted).
These same limitations do not apply to the Executive Branch, which
operates as a politically accountable check on the Legislative Branch. The
Founders separated the President from the Congress, giving him “a sepa-
rate political constituency, to which he alone was responsible,” and “the
means to resist legislative encroachment” upon his duty to execute the
laws. Freytag v. Comm’r, 501 U.S. 868, 906 (1991) (Scalia, J., concurring
sake of exposure. Id. at *9. Yet the district court reasoned that “[w]hen a court is asked to
decide whether Congress has used its investigative power improperly, its analysis must be
highly deferential to the legislative branch.” Id. Whether or not the district court correctly
applied this presumption in a case involving a congressional subpoena to a private party,
its posture of deference does not bear upon our conclusion that Treasury, as part of a co-
equal political branch, has an independent duty to determine accurately whether the
Committee’s section 6103(f ) request furthers a legitimate legislative purpose.
25
Opinions of the Office of Legal Counsel in Volume 43
in part and concurring in the judgment); see also The Constitutional
Separation of Powers, 20 Op. O.L.C. at 128 (explaining that the Execu-
tive’s “independent constitutional obligation to interpret and apply the
Constitution” is “of particular importance in the area of separation of
powers, where the issues often do not give rise to cases or controversies
that can be resolved by the courts . . . due in part to the limits of jurisdic-
tion and justiciability”). The head of the Executive Branch, who is elected
separately from Congress, ultimately must answer to the people for the
manner in which he exercises his authority. The separation of powers
would be dramatically impaired were the Executive required to implement
the laws by accepting the legitimacy of any reason proffered by Congress,
even in the face of clear evidence to the contrary. In order to prevent the
“special danger . . . of congressional usurpation of Executive Branch
functions,” Mistretta, 488 U.S. at 411 n.35, we believe that Treasury must
determine, for itself, whether the Committee’s stated reason reflects its
true one or is merely a pretext.
III.
Applying the foregoing legal framework, we concluded that the Secre-
tary reasonably and correctly found that the Committee lacked a legiti-
mate purpose for seeking six years of the President’s tax information. The
Committee’s asserted purpose—to consider legislation regarding the
IRS’s practices in auditing presidential tax filings—was implausible. The
objective mismatch between the Committee’s stated purpose, on the one
hand, and the particular information that the Committee demanded, on the
other, provided strong evidence of pretext. In addition, the nature of the
request, the long series of events that preceded it, and Chairman Neal’s
pointed failure to renounce his oft-proclaimed purpose of publicly releas-
ing the President’s tax returns all confirm that the Committee’s purpose
was the constitutionally impermissible one of forcing the public disclo-
sure of the President’s tax returns.
A.
According to Chairman Neal, the Committee requested President
Trump’s tax information to “consider[] legislative proposals and con-
duct[] oversight related to our Federal laws, including, but not limited to,
the extent to which the IRS audits and enforces the Federal tax laws
against a President.” April 3 Neal Letter at 1. To achieve that purpose, he
reasoned, “[i]t is necessary for the Committee to determine the scope of
26
Congressional Committee’s Request for the President’s Tax Returns
any such examination and whether it includes a review of underlying
business activities required to be reported on the individual income tax
return.” Id. The Committee therefore claimed to be interested in the IRS’s
conduct of audit policy, not the President’s underlying business affairs.
But the Committee had requested the individual returns of Donald J.
Trump and those of eight associated business entities for the past six years
(2013 through 2018); information related to audits of any of those returns;
and all administrative files for those returns. Id. at 1–2.
Although 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,
see Watkins, 354 U.S. at 187, we agree with the Secretary that the Com-
mittee’s request does not objectively “fit” this stated purpose. April 23
Mnuchin Letter at 4. First, many of the requested documents are barely
relevant to reviewing the IRS’s auditing of the President’s tax returns.
The tax returns themselves precede any audit and do not include any
information about the audit processes. At the same time, as the Secretary
repeatedly noted, the Committee had expressed no interest in the actual
IRS documents that would provide the best evidence of its policies and
procedures relating to presidential audits. If the Committee were sincerely
interested in IRS policies and practices, then it surely would have started
by requesting that Treasury provide information about those policies. As
the Secretary explained, “[a]lthough the IRS has conducted mandatory
examinations of Presidents’ tax returns since 1976, the Committee does
not request additional information about those policies or ask whether
those policies and procedures have changed over time.” Id. 30 Senator
Grassley, who as Chairman of the Senate Finance Committee has the
same powers as Chairman Neal under section 6103(f ), made precisely the
same point: “If Democrats are truly interested in finding out the level of
scrutiny given to a President’s tax returns, why not simply just ask the
IRS to describe its audit procedure? That is a very straightforward ques-
tion[.]” 165 Cong. Rec. S2259 (daily ed. Apr. 4, 2019).
While the Committee requested the “administrative files” accompany-
ing the President’s tax returns, which would include audit-related infor-
mation, Chairman Neal’s press release mentioned only the President’s tax
returns in its title (“Neal Statement on Requesting President Trump’s Tax
Returns”), mentioned the returns three additional times in its text, and
30 Indeed, it was not until after Treasury had denied both the Committee’s request and
the follow-on subpoenas that the Committee’s staff agreed to receive a briefing from
Treasury supplying such information. See supra note 25.
27
Opinions of the Office of Legal Counsel in Volume 43
never addressed the other documents. See supra note 22. The Commit-
tee’s lack of interest in the IRS’s audit policies and procedures, or in the
audits themselves, speaks volumes.
Second, the Committee requested six years of the President’s tax re-
turns, but only the last two years correspond to his time in office. Chair-
man Neal was candid in stating that he would have gone back even fur-
ther, but he believed such a judgment would be hard to defend in court.
According to Chairman Neal, “[t]he six-year decision was reached be-
cause the IRS advises you should retain six years of your tax records. . . .
And we thought if this were to end up in court we didn’t want an issue,
for example if you were requesting eight years, where it would be thrown
out based on a technicality.” 31 Although Chairman Neal’s concern for a
taxpayer’s retention of his records would not seem to have any bearing
upon a request directed towards the IRS, what is perfectly clear is that his
stated rationale had no connection at all with the IRS audit procedures
supposedly under investigation. Nor does his reason for choosing six
rather than eight years reflect any interest in presidential tax returns, as
Donald Trump was not President in 2011, any more than he was in 2013
or 2016.
Third, 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 Vice Presidents since 1977. Chairman
Neal justified the Committee’s exclusive interest in President Trump on
the ground that he is “unique,” owing to the “volume of his tax returns”
and his businesses. May 10 Neal Letter at 2. But it seems doubtful that the
Committee, if it genuinely sought to evaluate the effectiveness of IRS’s
presidential-audit program, would decide at the outset to rely on a sample
consisting of only one conceded outlier.
Furthermore, audits take time. By limiting itself to the returns of “the
only President for whom the audit process necessarily remains ongoing,”
April 23 Mnuchin Letter at 4, the Committee simply increased the chanc-
es that it would see fewer completely audited returns than it would if it
had included, say, those for President Obama and Vice President Biden
between 2013 and 2016. Focusing on older presidential and vice presiden-
tial returns would also have been more consistent with IRS policy by
31Erica Werner, Damian Paletta, and Jeff Stein, White House maneuvers to block re-
lease of Trump’s tax returns, Wash. Post, Apr. 4, 2019, https://www.washingtonpost.com/
business/economy/white-house-maneuvers-to-block-release-of-trumps-tax-returns/2019/
04/04/047b19e0-56f4-11e9-8ef3-fbd41a2ce4d5_story.html (emphasis added).
28
Congressional Committee’s Request for the President’s Tax Returns
avoiding potential interference with any current audit activities. See
Internal Revenue Manual § 11.3.4.4, ¶ 13 (Jan. 1, 2019) (providing that
“[r]ecords relating to cases that are under active investigation may be
disclosed if, in the opinion of the appropriate functional head, no serious
adverse effect on the administration of the tax laws will result from dis-
closure of the open case records”). By choosing an unrepresentative
sample of presidential and vice presidential returns, the Committee made
it even less likely that the Committee could learn anything bearing upon
legislative changes to the IRS’s program. Nor, with information about
only one person and his businesses, would the Committee 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.
Thus, an objective assessment of the request confirms the Secretary’s
observation that “the terms of the Committee’s request” did not “fit the
Committee’s asserted purpose” of investigating “the extent to which the
IRS audits and enforces the Federal tax laws against a President.” April
23 Mnuchin Letter at 4.
B.
At the same time, the Committee’s request appeared to be “perfectly
tailored” to accomplish the Chairman’s long-standing and avowed goal,
namely “to obtain and expose the President’s tax returns.” April 23
Mnuchin Letter at 4. As explained above, Chairman Neal and other Mem-
bers have engaged in a prolonged campaign to force public disclosure,
repeatedly urging the Committee to invoke section 6301(f ) to serve that
cause. They pledged to “remain steadfast in [their] pursuit of ” public
disclosure of the returns. H.R. Rep. No. 115-309, at 8 (dissenting views);
H.R. Rep. No. 115-73, at 8 (dissenting views). They made the promised
disclosure a recurring issue and, after the election, pledged to accomplish
that goal.
During these political debates, Chairman Neal and his political allies
asserted many reasons for reviewing the President’s tax returns, see supra
note 19 and accompanying text, yet 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. By contrast, the
Ways and Means Committee does have jurisdiction to review IRS audit
practices. On April 5, Chairman Neal candidly acknowledged that the
Committee had sought to “construct[]” a “case” for acquiring the returns
that would “stand up under the critical scrutiny of the federal courts.” See
29
Opinions of the Office of Legal Counsel in Volume 43
supra note 23. That is transparently the reason why the Committee now
claims an interest in presidential-audit practices.
In his correspondence with Treasury, Chairman Neal asserted that any
“concerns about what the Committee may do with the tax returns . . . are
baseless.” April 13 Neal Letter at 2. But his letter did not deny the Com-
mittee’s plan. Chairman Neal said only that Treasury “must assume that
the Committee Members . . . will act properly in the conduct of their
official duties.” Id. He neither made any promises against publicly releas-
ing the tax returns nor renounced his previously “steadfast” “pursuit” of
their public release. We do not disagree that a committee may make “a
valid legislative inquiry” even though there is “no predictable end result”
as to where the investigation would lead. Id. (quoting Eastland, 421 U.S.
at 509). But congressional investigations must start with a legitimate
subject of inquiry. By contrast, here, as the Secretary recognized, the
Committee began precisely “in the opposite direction” by deciding the
documents it sought to obtain and seeking, “in Chairman Neal’s words—
to ‘construct[]’ a ‘case’ for seeking the documents.” April 23 Mnuchin
Letter app. A, at 4. There is one and only one “predictable end result” of
the Committee’s inquiry: the public exposure of the President’s tax re-
turns.
Under the circumstances, we do not believe that Treasury was required
to “blind” itself to the “wide concern, both in and out of Congress,” about
the nature of the Committee’s request. Rumely, 345 U.S. at 44 (internal
quotation marks omitted); see also 165 Cong. Rec. S2260 (daily ed. Apr.
4, 2019) (statement of Sen. Grassley) (concluding that the April 3 request
was “very, very short” of “hav[ing] a legitimate legislative purpose”);
Letter for Richard E. Neal, Chairman, Committee on Ways and Means,
U.S. House of Representatives, from Kevin Brady, Ranking Member,
Committee on Ways and Means, U.S. House of Representatives (May 10,
2019) (“[I]t has become obvious that your supposed legislative purpose is
just a pretext, and your request is merely a means to access and make
public the tax returns of a single individual for purely political purposes.
This is not a legitimate legislative purpose[.]”) (footnote omitted). The
openly partisan nature of this dispute would understandably make the
courts wary of interceding. 32 But Treasury had no such choice. It could
32Cf. Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., concurring in judgment)
(noting that judicial intervention in disputes between the political branches “risk[s]
damaging the public confidence that is vital to the functioning of the Judicial Branch . . .
by embroiling the federal courts in a power contest nearly at the height of its political
30
Congressional Committee’s Request for the President’s Tax Returns
not abstain or declare the matter nonjusticiable. It was required to faith-
fully carry out its duties, either by releasing the tax information in re-
sponse to a legitimate request or by maintaining its confidentiality under
section 6103(a). There could be no middle ground.
For all the foregoing reasons, we believe that the Secretary reasonably
and correctly concluded that the Committee’s stated purpose was pre-
textual and its actual purpose was simply to provide a means for public
disclosure of the President’s tax returns. Given that Congress may not
pursue public disclosure for its own sake, see, e.g., Hutchinson, 443 U.S.
at 133; McMillan, 412 U.S. at 330; Watkins, 354 U.S. at 200, disclosure
was not authorized under section 6103(f ), and section 6103(a) therefore
required Treasury to maintain confidentiality of the requested tax infor-
mation.
IV.
Because section 6103(a) prohibited the disclosure of the tax returns
sought in Chairman Neal’s April 3 request, as well as in the correspond-
ing subpoenas, Treasury’s refusal to provide the information did not
violate either 26 U.S.C. § 7214(a)(3) or 2 U.S.C. § 192.
Under 26 U.S.C. § 7214(a)(3), it is a crime for “[a]ny officer or em-
ployee of the United States acting in connection with any revenue law of
the United States” to “fail[] to perform any of the duties of his office or
employment” “with the intent to defeat the application of any provision”
of the Internal Revenue Code. Treasury’s denial to the Committee of the
requested information did not violate that statute. Far from a failure to
perform any “duties” in connection with the revenue law, the Secretary
and other officials at Treasury faithfully implemented their duties under
section 6103(a) in response to a request for a disclosure that would not be
authorized under section 6103(f ). In addition, given the statute’s intent
requirement, they did not act with an “intent to defeat the application of ”
section 6103(f ), when they acted in good faith after consulting with you
and with this Office.
tension”); Goldwater v. Carter, 444 U.S. 996, 1004 (1979) (Rehnquist, J., concurring in
the judgment) (explaining that case was nonjusticiable because, among other things, “we
are asked to settle a dispute between coequal branches of our Government, each of which
has resources available to protect and assert its interests, resources not available to private
litigants outside the judicial forum”); Gravel v. United States, 408 U.S. 606, 640 (1972)
(Douglas, J., dissenting) (“The federal courts do not sit as an ombudsman refereeing the
disputes between the other two branches.”).
31
Opinions of the Office of Legal Counsel in Volume 43
For similar reasons, Treasury officials did not violate the contempt-of-
Congress provision, 2 U.S.C. § 192, by failing to turn over confidential
records in response to a Committee subpoena that lacks a valid legislative
purpose. This Office has recognized that the Department of Justice will
not prosecute an executive branch official under section 192 for refusing
to provide information to Congress in order to protect executive preroga-
tives. See, e.g., Attempted Exclusion of Agency Counsel from Congres-
sional Depositions of Agency Employees, 43 Op. O.L.C. __, *13–14 (May
23, 2019); Prosecution for Contempt of Congress of an Executive Branch
Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C.
101, 101–02 (1984); see also Prosecutorial Discretion Regarding Cita-
tions for Contempt of Congress, 38 Op. O.L.C. __, *1 (June 16, 2014)
(“[A] U.S. Attorney to whom a contempt of Congress citation is referred
retains traditional prosecutorial discretion regardless of whether the
contempt citation is related to an assertion of executive privilege.”).
The same rationale applies to a determination that federal law does not
authorize Treasury to share the President’s tax information with the
Committee. The Committee’s power to conduct investigations is itself
limited by the need for the inquiry to be in support of a legitimate legisla-
tive purpose. See, e.g., Watkins, 354 U.S. at 187. Because the Commit-
tee’s request lacked a legitimate legislative purpose and therefore exceed-
ed its constitutional power of inquiry, Congress may not use its subpoena
power to enforce an unconstitutional demand for information. The sub-
poenas were effectively null and void. And, given the lack of an applica-
ble statutory exception, compliance with the subpoenas would have been
prohibited by section 6103(a). Accordingly, the refusal by the Treasury
officials to comply with the subpoenas did not violate 2 U.S.C. § 192.
V.
For these reasons, we advised that the Committee’s request for the
President’s tax information under 26 U.S.C. § 6103(f ) should be denied.
Congress could not constitutionally confer upon the Committee the right
to compel disclosure by the Executive Branch of confidential information
that did not serve a legitimate legislative purpose. While the Executive
Branch should accord due deference and respect to congressional re-
quests, Treasury was not obliged to accept the Committee’s stated pur-
pose without question, and based on all the facts and circumstances, we
agreed that the Committee lacked a legitimate legislative purpose for its
request. In the absence of such a legitimate purpose, 26 U.S.C. § 6103(a)
32
Congressional Committee’s Request for the President’s Tax Returns
barred Treasury from disclosing the President’s tax information in re-
sponse to the Chairman’s letter or the subsequent subpoenas.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
33