The Department of Justice’s (DOJ) Office of Legal Counsel (OLC) published an opinion on Friday in support of Treasury Secretary Steven Mnuchin‘s refusal to hand President Donald Trump‘s tax returns to the House Ways and Means Committee led by Chairman Rep. Richard Neal (D-Mass.).
The opinion, penned by OLC’s Assistant Attorney General Steven Engel, said that House Democrats were using 26 U.S. Code § 6103(f) merely as a pretext to obtain Trump’s tax returns. Engel said that Mnuchin was right to say this was not a legitimate legislative purpose.
“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 constitutionally confer upon the Committee the right to compel the Executive Branch to disclose confidential information without a legitimate legislative purpose,” Engel said. “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 President’s tax returns public, which is not a legitimate legislative purpose.”
To support this, Engel used Neal’s past words against him:
During the prior Congress, Chairman Neal, who was then the Committee’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.
Chairman Neal claimed in his initial demand that the Committee was “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.”
In closing, Engel said that 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 requests, Treasury was not obliged to accept the Committee’s stated purpose without question, and based on all the facts and circumstances, we agreed that the Committee lacked a legitimate legislative purpose for its request,” he added.
Engel said that because Neal lacked a legitimate legislative purpose, 26 U.S.C. § 6103(a) prevented Mnuchin from complying with subpoenas.
26 U.S.C. § 6103(a) says that the “General rule” is that “Returns and return information shall be confidential.”
Mnuchin has said multiple times now that Neal lacks a “legitimate legislative purpose” for demanding and obtaining the president’s tax returns. He also said he consulted with the DOJ about it.
“As I explained in my May 6 letter to the Committee, the Department of the Treasury (the Department) has consulted with the Department of Justice concerning the lawfulness of the Committee’s unprecedented request,” Mnuchin said. “In reliance on the advice of the Department of Justice, we have determined that the Committee’s request lacks a legitimate legislative purpose, and pursuant to section 6103, the Department is therefore not authorized to disclose the requested returns and return information.”
“For the same reasons, we are unable to provide the requested information in response to the Committee’s subpoena,” he added. “As I explained in my May 6 letter, the Department of Justice has informed us that it intends to memorialize its advice in a published legal opinion as soon as practice.”
This was an identical argument to the one Mnuchin made on May 6.
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