Justice Department Legal Arguments For Withholding Trump Tax Returns Lack Merit
The Justice Department has released a memo attempting to justify the Administration's refusal to comply with a subpoena for the President;'s tax returns. Their argument is weak to say the least.
Last month, Treasury Secretary Steve Mnuchin rejected both a written request and a subpoena from House Ways And Means Committee Chairman Richard Neal, who is seeking copies of President Trump’s tax returns as part of an ongoing Congressional investigation. This refusal came notwithstanding the fact that Federal law seems to clearly establish that the Committee is entitled to a copy of the tax returns of any individual. Mnuchin contended in his responses that he based his decision not to comply with the request on a legal opinion from the Department of Justice opinion that had not yet been made public. In the interim, it was reported that the Internal Revenue Service had prepared its own draft memorandum in which it argued that the Treasury Department had no alternative but to comply with the request given the clear language of the relevant statute. Despite that, Mnuchin has continued to refuse to comply with the subpoena, leading to some demands that he be held in contempt of Congress as a result.
Late last week, the Justice Department finally released that memorandum, and the argument supporting Mnuchin’s decision doesn’t really add up:
WASHINGTON — The Justice Department on Friday backed a decision by Treasury Secretary Steven Mnuchin to defy a request from Congress for President Trump’s tax returns on the basis that it lacked “legitimate legislative purpose.”
The department issued a 33-page memo, dated Thursday, that came as House Democrats were preparing a lawsuit as the next step in their effort to gain access to Mr. Trump’s returns. Mr. Mnuchin defied requests made in April and May by the House Ways and Means Committee and refused to comply with a subpoena, setting up a legal battle between the two branches of government.
House Democrats are trying to obtain six years of Mr. Trump’s personal and business tax returns using an obscure provision of the tax code that allows congressional tax-writing committees to get the returns of any taxpayer.
The memo, written by Steven A. Engel, the head of the Office of Legal Counsel, argued that House Democrats, led by Representative Richard E. Neal of Massachusetts, made the request for political purposes with the intention of releasing Mr. Trump’s tax returns. It cast doubt about the formal rationale that the committee used for the request, which Democrats said was for the purpose of examining how the Internal Revenue Service audits presidential tax returns.
“The true aim was to make the president’s tax returns public,” Mr. Engel wrote.
He detailed public comments by Mr. Neal and Speaker Nancy Pelosi about their desire to release Mr. Trump’s tax information. He also argued that seeking the returns would not appear to fit the committee’s stated goal of scrutinizing the presidential audit process.
Claiming that Congress was exceeding its constitutional authority with the request, the Justice Department concluded that Mr. Mnuchin was following the law by refusing to turn over the returns.
“Congress may not use its subpoena power to enforce an unconstitutional demand for information,” Mr. Engel wrote.
Mr. Neal’s office did not immediately comment on the memo.
Mr. Engel’s argument that Congress lacked a legitimate legislative purpose in seeking Mr. Trump’s tax returns dovetailed closely with tracked arguments made by Mr. Trump’s legal team in lawsuits over congressional subpoenas to financial firms like Mazars USA for his financial records.
Two Federal District Court judges last month rejected that argument, refusing to block congressional subpoenas to such firms. One wrote that it was because Congress had put forth a valid argument for why it wanted them for legislative purposes and that it was “not for the court to question whether the committee’s actions are truly motivated by political considerations.” Mr. Trump is appealing the rulings.
House Democrats have been grappling with how to respond to the Trump administration’s strategy of rebuffing their oversight efforts. Mr. Neal has signaled that he is preparing to file a lawsuit soon.
More from The Washington Post:
The Justice Department on Friday released its legal rationale for refusing to provide President Trump’s tax returns to Congress, arguing that House Democrats want to make the documents public, which “is not a legitimate legislative purpose.”
Treasury Secretary Steven Mnuchin refused to hand the documents over early last month, writing in a letter to House Ways and Means Committee Chairman Richard E. Neal (D-Mass.) that the committee’s demand was “unprecedented” and could “have lasting consequences for all taxpayers.” After getting legal advice from the Justice Department, Mnuchin said he had determined the request should be refused.
Rep. Don Beyer (D-Va.), who serves on the committee, disputed the notion that lawmakers were using a “pretextual” basis — or dubious justification — for demanding the materials.
“Here’s what is actually ‘pretextual’ — the President telling a Cabinet Secretary to ignore the law to protect him, the Secretary usurping legal responsibilities of the IRS Commissioner to do it, and the OLC coming up with these flimsy, bogus excuses that won’t stand up in court,” he wrote on Twitter.
Legal analysts have said Mnuchin’s decision was a highly unusual move, given the language of the law covering the matter, and some House Democrats have said they expect to take legal action to get a court to intervene. A confidential Internal Revenue Service legal memo obtained by The Washington Post says tax returns must be given to Congress — unless the president were to assert executive privilege, which he has not done in this instance.
(…)
The memo on Trump’s taxes is written in part with an eye toward the expected court fights, and at one point its author, Assistant Attorney General Steven A. Engel, suggested judges should be reticent to intervene in such disputes.
“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,” Engel wrote in the 33-page memo. “These same limitations do not apply to the Executive Branch, which operates as a politically accountable check on the Legislative Branch.”
The Ways and Means Committee is seeking tax returns and other Trump business information from 2013 through 2018, relying on a law that says the Treasury Department “shall furnish” tax-return information upon “written request” from that panel’s chairman. The committee issued subpoenas for the records last month.
(…)
The Justice Department’s opinion argues that the committee’s request is simply partisan politics that carried over from Trump’s refusal during the 2016 presidential campaign to publicly release his tax returns. For decades, major presidential candidates have made their tax returns public.
The memo cited statements made by leading Democrats during the campaign and after Trump became president to argue that the Democrats are trying to violate important boundaries between the executive and legislative branches for short-term political gain.
“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 and raised a serious risk of abuse,” Engel wrote in the memo, which is dated Thursday.
“Congress could not constitutionally confer upon itself the right to compel a disclosure by the Executive Branch of confidential information that does not serve a legitimate legislative purpose.”
Engel said that while the executive branch “should accord due deference and respect to congressional requests,” it does not need to treat them “as unquestionable.”
The president, Engel wrote, “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.”
Off the bat, Engel’s argument that the Committee’s request is illegitimate due to the fact that it is intended to make the returns public ignores both the statute and the representations of Chairman Neal and the other members of the Committee. Under the terms of the relevant statute, while the committee is entitled to any tax return it requests those returns only have to be provided under the proviso that they cannot be made public unless the individual taxpayer consents to them being made public. Additionally, I am not aware of any statements by Chairman Neal or any of the Democratic members of the committee wherein they state that they intended to make the President’s returns public if and when they receive them. Given that, this part of Engel’s argument quite simply has no merit whatsoever.
Engel goes on to argue that the Committee is not entitled to copies of the President’s returns due to the fact that it lacks a “legitimate legislative purpose.” While the statute itself does not contain any requirement that the Committee set forth any such purpose, two Supreme Court cases suggest that this limitation on Congressional subpoena power does exist. These cases are McGrain v. Daugherty, a 1927 case arising out of one of Congress’ investigations into the Teapot Dome scandal, and Watkins v. United States, a 1957 case dealing with a union officials conviction for contempt of Congress. The facts of these cases are not important, but both stand for the proposition that any Congressional investigation into the private affairs of an individual must serve a “legitimate legislative purpose.” In late May, though, Federal District Court Judges in Washington, D.C. and New York City both issued opinions dealing with unrelated Congressional document requests that appear to undercut Engel’s legal position significantly. While neither case deals with tax return issues, they do deal with the equally sensitive issue of Congressional requests for documents from third-parties dealing with the President’s finances. In both cases, the Judges gave Congress broad deference in determining what a “legitimate legislative purpose” was and essentially stated that as long as Congress can state a plausible reason for requesting the information then it has met the requirements under the law.
With these rulings in mind, and also keeping in mind that the relevant statute clearly gives the Ways & Means Committee broad authority to demand a copy of a tax return, it seems clear that the Administration’s legal argument is incredibly weak. Even taking into account the argument that the committee must have a “legitimate legislative purpose” for its request, it is clear from the court cases noted above that Congress itself is the sole judge of what a legitimate purpose is and that it is not up to the Administration to refuse to comply with a validly issued subpoena, especially in a case such as this when the subpoena is backed up by the statutory authority that exists in this case. Were the matter brought before a Judge, as it should be, it seems clear that there would be a ruling in favor of the committee.
At this point, the next move in this standoff is up to Chairman Neal and the Committee. Since Mnuchin is obviously not going to respond to the Committee’s request under any circumstances, that means that they need to move forward with finding him in contempt and using the court’s to enforce their demand. Based on the law, it seems clear that the better argument would be on their side. As I’ve noted before, though, that process is going to be slow to proceed. Even if the Committee wins at the District Court level, the Administration will obviously seek to appeal the matter to the Court of Appeals and, from there, to the Supreme Court if necessary. If it goes that far, then the request may still be pending well after the 2020 election and well after Trump either being forced to leave office due to losing the election or will be somewhere in the beginning of a second term in office. If Trump is defeated, of course, the request effectively becomes moot. If he wins re-election, then it’s unclear what state all these investigations of the President will be in at that point.
Here’s the Justice Department memorandum:
Justice Department Memo on … by on Scribd
They don’t need merit, they need about fifteen months delay.
Gotta disagree with this. Whether trump wins or loses, he and the members of his admin who have engaged in such blatant obstruction of Constitutional powers need to pay a price, and I would argue a severe price.
The DOJ argument may be specious at best…but Democrats are standing around with their thumbs up their asses while Democracy crumbles.
His taxes…I’m sure he pays nothing in taxes, and worth a fraction of what he says he is. Who cares? For me the reason to see his taxes are to see what his connections to foreign entities are, and who he is likely compromised by. Congressional hearings on the Counter-Intelligence Investigations – which we know almost nothing about – would accomplish pretty much the same thing.
BUT DEMOCRATS NEED TO ACTUALLY DO SOMETHING.
@Daryl and his brother Darryl: Suggestions welcome.
Not having an Open Thread this morning is an even worse injustice than that time I wasn’t admitted to Harvard for using racial slurs.
@Teve:
I assume James is busy with other matters today.
@Teve:
First and foremost…it’s laughable that Mueller has not been up to The Hill to testify yet.
Fuqing laughable.
Mnunchkin should be held in contempt and put in jail for not turning over the taxes. Let him sit in a cell while the DOJ’s nonsensical argument works it’s way thru the courts.
Maybe impeach Baghdad Barr.
I get that none of these things is easy…so what?
The point is that Dennison is tearing down our Democracy and Pelosi and Schiff and Nadler are shaking their fists and writing letters. They either need to ACTUALLY do something (and I don’t necessarily mean impeach) or resign and let someone else do something.
@OzarkHillbilly:
I agree, but I don’t know whether it’s possible. I mean, sure, a DOJ under a Democrat would investigate Dennison and his cesspool he calls a cabinet, but that would look like trying to extract payback on political matters. The GOP in turn would seize on that to portray themselves as victims, which is essentially the Trumpian political strategy.
It’s not payback. It’s a statement that while you may be protected from the consequences of malfeasance while in office, you will be prosecuted once you and your party are out of office. That’s fair and just.
How do we make this plain to people not in full touch with reality?
@Daryl and his brother Darryl:
Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure
Or if you prefer the CliffNotes version
As far as I know the Sergeant at Arms only has powers of arrest on the Capitol Hill grounds and I’m pretty sure they don’t have a jail there. The House can impeach everybody in the admin and McConnell will proclaim each and every one of them to be as pure and innocent as the driven snow.
I know it’s frustrating, and I would certainly like a few things to happen more quickly, but apparently things have to be done in an above board and legal manner if they are going to past muster in a court of law, not to mention the court of public opinion which is where the real battle is fought.
@Daryl and his brother Darryl: I believe Trump would far prefer to be revealed as a crook than as a pauper.
@Kathy: I agree.
I have said before that the real danger is when one of our 2 major political parties embraces law breaking as “politics as usual” (not to mention outright contempt for the constitution) and we are now way past that point with trump and the GOP.
47% of the people in this country are predisposed to see any prosecutions, no matter how egregious the offenses, as just political payback. We know this because it is exactly what they themselves would do if they could. They’re still chanting “Lock Her Up”.
For the first 1 1/2 years or so of trump’s presidency I poo-poohed the constitutional crises talk with just “Not yet.” but now that I see the entire* GOP lining up in defense of trump’s outright law breaking, and FOX’s cheer leading of it, I do finally fear for my country, because I suspect at least 40% of my fellow citizens don’t care about anything more than that their side wins.
*Entire GOP, Mitt Romney say mealy mouthed mean things about trump doesn’t count.
@Teve: That’s nothing, Harvard wouldn’t let me in because I didn’t have the money or the grades, wait a minute, Jared got in anyway. OK, it was just the money.
@OzarkHillbilly: I didn’t have the money or the grades either, but if i’d had, it woulda been the racial slurs, and that’s a VIOLATION OF MY FIRST AMENDMENT RIGHTS111!!!!!!!
FTFY, New York Times.
So you keep saying…
No. Both found that any Congressional subpoena of an individual to testify in a Congressional investigation must serve a legitimate legislative purpose. Neither addressed the question of what Congress may legitimately investigate, and neither addressed any Congressional action other than requiring private citizens to testify. Certainly neither addressed whether an executive agency of the US Government (not a private individual) could flout a law requiring it to provide certain records to the Congress on request, which is the situation at hand.
Still waiting for you to either rebut this argument, or point me at some legal scholars who have already done that.
@OzarkHillbilly:
I think this is first and foremost the reason impeachment hearings must be held. I have two millennial children, (1991/1995). The older of the two posed a thought question to his sister and me last night: would we rather have a Congress made up entirely of women but that was half GOP and half Democrat, or a Congress made up entirely of Democrats that was half women? He was honestly shocked that both of us said 100% Democrats, please and thank you. He asked why, and I said “Two words: Susan Collins.” My daughter chimed in: “Two more: Marsha Blackburn. We could go on.”
But here’s the crux of the problem: he said wouldn’t it be better to have both parties represented so that we can have equal weights and bipartisanship again?
There are millennials out there who came of political age in the past 12 years who think that this is normal. They think how the GOP is behaving now is how it’s always been. They think this is “bipartisan.”
This is why we need hearings. We need to drive home – no matter how much the Senate refuses to act – that this is not normal and this is not how it’s supposed to work.
(By the way, both his sister and I said, no, the GOP deserves to be thrown on the muck heap of history, gutted and flopping like the bottom feeders that they are. Until they come to their senses, they deserve absolutely no hand in government at all. I also gave him a quick rundown of what actual bipartisanship used to look like and warned him that the current way the GOP is acting is by no means normal and should never be normalized in his mind. Or his friends’ minds. Ever.)
I’m starting to think we have to have either a Truth and Reconciliation Commission or impeachment.And we’re not going to get a Truth and Reconciliation Commission.
@OzarkHillbilly:
Look…there is someone actively tearing down the Republic and they are still working at it every single day.
¯\_(ツ)_/¯ is not an option.
I’m not a politician, but I have to problem solve every single day. You have to be clever. If they can’t figure out what to do besides stick their thumbs up their asses then they should get out of the way and let someone who can, do it. Put together some legal geniuses who can think outside the box. Defund the entire shooting match. Whatever. You just can’t defend the country against an abnormally corrupt politician with normal defenses. But whatever you do you ultimately you have to do something beside waiving your fists and writing letters.
@Daryl and his brother Darryl: The spell check gotcha actually makes your comment better. They are “waiving the fist”.
I like Lawrence Tribe’s idea. Prepare a bill of impeachment with explicitly no intention of presenting it to the Senate. Make it clear it would be a waste of time to ask Kentucky Fried Voldemort to uphold his oath of office.
I’m not 100% sure the Justice Department is wrong about this.
Let’s use an analogy: a renter, let’s call him Drumpf, is living in an apartment with his thirty cats, which his least explicitly forbids. The curtains are drawn, but you can see the shadows of cats and hear some meowing and then there’s the smell.
The landlord can only enter for maintenance, with a 24 hour notice, and is using the presence of checking the refrigerator as an excuse to check for the telltale signs of cats, whereupon he will pretend to be surprised, but now that he has found the thirty cats, well, he cannot ignore that.
Is the landlord in the right? Or is he abusing his authority to do maintenance to do an otherwise prohibited search? Drumpf is in the wrong, but that’s a separate question.
The House is using this law, and the claim that they want to ensure the IRS is properly auditing, as an excuse to check for the thirty cats we all know are there.
We have testimony that Trump has inflated the value of assets to get loans, and simultaneously claimed the assets had a lower value for tax purposes. Someone has testified to seeing the thirty cats.
The House should be subpoenaing the records based on that, not doing an end run around the need for probable cause. It’s particularly galling because they have probable cause.
@Blue Galangal:
Is this the new “would you rather fight a horse-sized duck or a hundred duck sized horses?”?
Kids these days…
Also, the correct answer is really 99 Democrats and 1 Angry, Aggrieved Republican, because we want to watch them suffer.
@Gustopher/Blue Galangal: entirely of Democrats that was half women.
But I may be biased by events of the last 24 hours on twitter, where Liz Cheney tried to call AOC ignorant and offensive, because AOC said the US is operating concentration camps for refugees, and according to Cheney it’s not a concentration camp if the residents aren’t jews.
@Teve: I’m going to revise my answer slightly. 100 Half-women Democrats. Not hermaphrodites or anything, but female centaurs, mermaids, and the like. Maybe a couple of cyborgs.
I don’t know if they would govern any better, but they would be much cooler.
@Gustopher:
That’s where your analogy breaks down. Under current law, there are no restrictions on when and how the landlord may request entry, and no reason need be given. The tenant must allow entry. The landlord is physically incapable of breaking the door down, but by law he could.
De-analogizing: the law says that when certain specific Congressional committees ask for an individual’s tax records, Treasury shall hand them over. No questions, not criteria, no rationale needed. Everyone, including IRS counsel, agrees that this is what the law says. Mnuchin is refusing to let his agency do what the law says they must do, hoping that the courts will rule that it was a bad law. Or that they take so long to rule against him that Trump no longer cares.
@DrDaveT:
That varies state by state, and smaller jurisdiction by smaller jurisdiction, by the way. New York City has much stronger laws than Bumfvck, Idaho.
There is a question about a legitimate legislative purpose, which brings up the question of what the actual purpose of the request is. The DOJ is right when they say that there is a pattern of behavior and statements that have to be judged along with the specific request. (It would be nice if they applied that same logic to things like vote suppression, or firing the FBI director….)
The Democrats are trying to be clever when they don’t have to. They have cause to subpoena the tax returns and a lot of other financial documents, and these subpoenas would be upheld by the courts.
And, I’m surprised that the Republicans haven’t argued that even if the law says X, the law is unconstitutional so they shouldn’t have to do X. But I expect they just haven’t gotten there yet.
@Gustopher:
The landlord’s not in the wrong unless there’s no real maintenance to be done. Performing one legal task as cover to observe for other illegal wrongdoing is how most investigative work in this world gets done. Now, *faking* maintenance is where you get kinda sketch but if there’s legit work to do, it’s not the landlord’s fault your rule-breaking leaves evidence out in the open. If it’s a new fridge and you wanna come in to “check on it”, you’re checking on me and not being subtle about it.
In your scenario, the cats are probably doing damage that require maintenance work. So really, the landlord’s not in the wrong even on that part because the assumption that the fridge might be damaged by the animals is founded. A smarter tenant would be doing the work themselves and letting the landlord know repairs were just done (here’s the bill I just incurred!) so that the landlord has less grounds to take a look around.
Just about anything this administration puts forward lacks merit…
In fairness, it’s reasonable that an administration that always lies about its motives would assume that others do to. That doesn’t justify Engle’s argument, but I can see the reasoning that backs it.
This made me laugh! Wow! Un-fucking-believable! And from the LGBTQ quarter, too! Liz, have you no character at all?
@Gustopher:
Hey, it’s your analogy, not mine. I wasn’t making a claim about renter law; I was telling what situation would hold in your analogy. If you’d rather skip the analogy and just talk about the law Mnuchin is violating, that’s fine with me.
No, there isn’t. The relevant statute states clearly that Treasury has to turn over the records when the appropriate Committee asks for them, period. It does not refer to purpose at all. “Legitimate legislative purpose” only comes into it if you want to assert that the Supreme Court’s rulings in McGrain and Watkins — rulings about the rights of private individuals — somehow apply to an Executive Agency. And even if they might conceivably be found to apply, that’s a decision for the courts, not for Mnuchin to make on his own initiative.
@DrDaveT: Thank you. Nowhere in the law have I found anything even close to saying they need to have a purpose let alone a legitimate one.