Trump’s lawyers called last week’s decision by the Justice Department’s Office of Legal Counsel the latest effort at partisan retaliation against him by Democrats, and denied that the House Ways and Means Committee sought six years of his tax returns out of a legitimate interest in closing tax loopholes exploited by wealthy Americans.
The July 30 OLC legal analysis overturned an April 2019 memorandum by the same office under Trump’s administration.
The earlier ruling assessed that the request by the committee chairman, Rep. Richard E. Neal (D-Mass.), was not legitimate legislative work but rather an attempt “to expose the private tax information of one individual — President Trump — for political gain,” Trump attorneys Patrick Strawbridge, William S. Consovoy and Cameron T. Norris wrote.
“The new OLC opinion does not deny the record of impermissible intent, but instead gives wobbly justifications and shallow reasoning for why the executive branch should ignore that evidence,” Trump’s defense said in a 37-page filing.
“The government’s complete reversal on the legality of Neal’s requests came, of course, under President Biden, a Democrat who ran against President Trump and made the disclosure of President Trump’s tax returns a campaign issue,” his defense said.
The new filing marks the latest turn in House Democrats’ long-stalled demands for Trump’s federal tax records and appears to ensure that legal fights spawned by Trump’s presidency will continue to shape future limits of presidential power and privacy even though he is no longer in office.
The House in July 2019 sued the Treasury Department to enforce a subpoena for Trump’s returns from 2013 to 2018, saying Trump alone among recent presidents and major party presidential candidates had refused to make his tax returns public, stonewalled Congress and mounted “an extraordinary attack” on oversight of the nation’s voluntary tax system.
“Numerous investigative reports have revealed that President Trump, through the complex arrangements of his personal and business finances, has engaged in multiple aggressive tax strategies and decades-long tax avoidance schemes,” the lawsuit stated. “Congress and the Committee, however, have thus far been unable to evaluate the President’s claims about the IRS’s audit process or to assess if and how President Trump has been able to take inappropriate advantage of the tax laws.”
Trump aides called the effort “presidential harassment” and an attempt to dig up political dirt, saying that Democrats would “never” see his returns.
U.S. District Judge Trevor N. McFadden froze the case pending the outcome of a similar multiyear legal battle testing the balance of powers between a president and Congress. That dispute was prompted by a House lawsuit to compel testimony by former White House counsel Donald McGahn over whether Trump obstructed the Russia investigation.
That fight ended when McGahn agreed to testify in June, after the Biden Justice Department, House Democrats and a lawyer for McGahn reached a compromise.
Similarly last Friday, the Treasury Department told McFadden that it intended to comply with the new OLC opinion for Trump’s returns. The time period for the records requested were modified by the House in a concession to Trump to cover material from 2015 to 2020, a range that includes his presidential campaign and years in the White House.
McFadden set a Wednesday deadline for Trump and other parties to lay out a schedule for fresh written arguments. Trump’s counterclaim set the clock running for a new round of litigation that could take months or years to complete, but with parties’ roles changed.
Rather than one political branch suing another — the legislative vs. the executive — Trump as an individual is suing Congress, arguing the courts should protect a former president and his businesses from unlawful scrutiny.
House Democrats say the Treasury Department and the House historically have always agreed that the tax-writing committee has authority under a 1924 law to obtain tax and audit records to examine how well the IRS is enforcing the nation’s tax laws.
In opposition, Trump’s team raised six claims Wednesday, arguing the House has failed to show it has a legitimate legislative purpose to obtain the records. They also argued that under separation-of-power principles the law does not authorize the House to request returns of a president or former president, nor to obtain tax records subject to ongoing audit in an executive branch agency.
His lawyers also argued that giving Congress the records subject to an investigation would violate Trump’s due-process and First Amendment rights, rewarding an “effort by one political party to harass an official from the other party because they dislike his politics and speech.”
Finally, Trump’s suit claimed that although he is no longer president, a higher separation-of-powers test still applies to attempts by Congress to obtain a former president’s records, citing last year’s Supreme Court ruling that congressional subpoenas seeking a president’s information must be “no broader than reasonably necessary.”
Trump’s lawyers said Neal’s request “badly fails ” that test, set in a case involving another House panel’s request for eight years of Trump’s records from accounting firm Mazars USA. The court ruled that congressional demands for a president’s personal papers demand careful scrutiny, suggesting that lower courts weigh whether other sources can reasonably provide the same information, and whether it burdens a president and may result from partisan politics, as well as whether the evidence sought advances a valid purpose.
Earlier this year, Trump’s tax records were turned over to the Manhattan District Attorney’s Office after a separate legal fight, and his lawyers said Wednesday that Congress could turn to other sources for information needed to pass broad tax law reforms. They also argued that enforcing the subpoena could unconstitutionally weaken every future president in dealings with Congress, raising the prospect that lawmakers could seek to embarrass them once they leave office.
Friday’s 39-page OLC opinion accepted the committee’s legislative purpose, saying it “has invoked sufficient reasons for requesting the former president’s tax information.”
The House argued that even an attempt to embarrass Trump wouldn’t void its request, and the OLC said respecting the balance between Congress’s oversight authority and the presidency meant not looking behind lawmakers’ stated intent.
“Treasury should conclude that a facially valid tax committee request lacks a legitimate legislative purpose only in exceptional circumstances,” the Justice Department opinion said.