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Congress should get Trump’s tax returns, Biden Justice Department says

Former president Donald Trump
Former president Donald Trump (Jabin Botsford/The Washington Post)

Former president Donald Trump’s tax returns should be turned over to House Democrats who tried unsuccessfully for years to get the documents, the Justice Department said Friday, in a legal analysis reversing a position taken two years ago.

The decision marks another significant legal setback for Trump, who has fought a multifaceted campaign to keep his tax records secret from prosecutors, lawmakers, and the public. Trump was the first president in decades to refuse to share his tax returns as a candidate or while in office.

Earlier this year, Trump’s tax records were turned over to the Manhattan district attorney, after a separate legal fight in which the Supreme Court declined to intervene. The prosecutor’s office has been examining Trump’s finances as part of a criminal probe of his businesses, and has indicted Trump’s longtime financial officer, Allen Weisselberg, on tax charges. Weisselberg has denied the charges.

While he was president, Trump successfully beat back efforts by the House Ways and Means Committee to see his tax returns, including a battle in federal court. But the new opinion from the Justice Department’s Office of Legal Counsel said the committee’s request to see the records — as part of its oversight of the Internal Revenue Service’s presidential audit program — is valid and should be fulfilled.

It wasn’t immediately clear if the former president would fight the release through a previously filed lawsuit over the committee’s demand for his tax returns. A spokesperson for Trump did not respond to a request for comment.

When the Biden administration began in January, lawyers in the case sought to determine if the government would take a new position. At the time, a lawyer for Trump said his client wanted to preserve his right to object to any handing over of such records.

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Rep. Kevin Brady (Tex.), the top Republican on the Ways and Means Committee, said the Justice Department’s new opinion was a politically motivated invasion of privacy that “sets a dangerous precedent that weaponizes that tax code by giving Congress the dangerous power to rummage through anyone’s private tax returns for purely political reasons.”

If a committee can take the tax returns of a former president, Brady said, “what stops them from doing the same to others they view as a political enemy?”

Friday’s opinion, while not binding on the courts, is the latest legal action in which the Biden Justice Department has broken with positions held by the Trump administration. It illustrates that some of the legal fights that consumed the Trump era are likely to continue and may have long-lasting consequences, as courts and senior law enforcement officials consider whether new boundary lines should be drawn around questions of presidential power, privacy and privilege.

In 2019, Trump’s Justice Department said the demand for years of Trump’s personal and business taxes by Ways and Means Chairman Richard E. Neal (D-Mass.) was not legitimate legislative work.

Based partly on that legal guidance, then-Treasury Secretary Steven Mnuchin refused the committee’s demands for the tax returns, saying Democrats were seeking them for partisan reasons.

Neal said he was seeking the documents to help determine “the extent to which the IRS audits and enforces the Federal tax laws against a President.” He reiterated that request this June and added additional reasons for it, saying the tax returns could show “hidden business entanglements raising tax law and other issues, including conflicts of interest,” or “foreign financial influences on former President Trump that could inform relevant congressional legislation.”

Federal law gives the Ways and Means Committee broad authority to get tax information for any individual — though the committee cannot disseminate the information to others without taking additional steps.

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In the 39-page legal opinion, the Justice Department concluded that seeking Trump’s taxes serves “a legitimate legislative purpose” and said the committee “has invoked sufficient reasons for requesting the former President’s tax information.”

The agency sent the legal opinion to the Treasury Department, which would formally deliver Trump’s returns to the committee.

Democrats rejoiced at the Justice Department's new position, with House Speaker Nancy Pelosi (D-Calif.) saying the Biden administration “has delivered a victory for the rule of law.”

Access to Trump’s tax returns “is a matter of national security,” the speaker said. “The American people deserve to know the facts of his troubling conflicts of interest and undermining of our security and democracy as president.”

Rep. Bill Pascrell Jr. (D-N.J.) said the fight over access to the tax returns amounts to a test of whether the legislative branch of the government can conduct meaningful oversight of the executive branch. “Neither the courts, nor the machinery of our government exist to bodyguard a corrupt private citizen from transparency,” Pascrell said in a statement.

A 1924 law gave the tax-writing committee authority to seek tax returns and other records to oversee the effectiveness of the Internal Revenue Service’s audit program. But that authority has not historically been used to seek the president’s returns, primarily because presidents have for many years made their tax records public.

The legal fights surrounding Trump’s taxes could have long-term consequences for the balance between Congress’s oversight authority and the presidency, particularly when it comes to subpoenas for the president’s personal information.

When House lawmakers sought Trump’s tax records held by his accounting firm, Mazars USA, Trump sued the firm to try to block lawmakers from obtaining financial statements and audits prepared for him and his companies.