Paul L. Caron
Dean


Saturday, June 15, 2019

Department of Justice Backs Treasury Secretary Mnuchin's Refusal To Release Trump's Tax Returns To Congress

DOJ Logo (2016)Memorandum Opinion For the General Counsel, Department of the Treasury, Congressional Committee’s Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f) (33 pages):

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 constitutionally confer upon the Committee the right to compel the Executive Branch to disclose 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 President’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 Chairman’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.

https://taxprof.typepad.com/taxprof_blog/2019/06/department-of-justice-backs-treasury-secretary-mnuchins-refusal-to-release-trumps-tax-returns-to-con.html

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Comments

I would think Congress would have the power to pass a law making all Presidents’ tax returns public. There would seem to be a legislative purpose in that.

It seems like the executive branch thinks they have oversight power over the legislative.

Posted by: Bruce Li | Jun 15, 2019 4:26:15 AM

Just another stage in the systematic human dismantling of self-rule.

Libertarians weep without tears

Posted by: Semanticleo | Jun 15, 2019 5:14:05 PM

Congress cannot pass a law by itself (absent a veto override).

Posted by: Hugh | Jun 15, 2019 5:14:09 PM

@Bruce Li

Congress does have that power.

They haven't passed a law making any presidential tax returns a matter of public record.

They also have the power to pass a law making YOUR tax returns a matter of public record.

Posted by: Rod T | Jun 15, 2019 5:17:05 PM

Executive oversight of the legislature makes exactly as much sense as legislative oversight of the white house.

If congress didn't create it, they have zero oversight authority. Except for constitutionally defined areas.

Posted by: ogregeek | Jun 15, 2019 5:26:02 PM

Does Bruce know Congress can't pass a law without the executive?

Posted by: Chris | Jun 15, 2019 5:27:02 PM

Yes, Congress could amend 26 U.S.C. § 7214(a)(3) or 2 U.S.C. § 192, to do what you advocate; but, to what effect since they don't have the 2/3's vote in either chamber to overcome a Veto.

Posted by: askeptic | Jun 15, 2019 5:32:41 PM

Congress might be able to pass a law making Presidents' tax returns public, but they would need a President to sign it into law, which seems unlikely.

Posted by: rosignol | Jun 15, 2019 5:41:18 PM

How many years of personal tax returns constitute legitimate "oversight?"

Posted by: Priscilla Rose | Jun 15, 2019 5:41:18 PM

Then you could be a democratic member of Congress!

Read the opinion. Fishing expeditions masquerading under a pretext of legislative purpose don't fall under the purview of Congress.

Posted by: Dantes | Jun 15, 2019 5:52:06 PM

Bruce, Congress does have the power to pass such a law, but they have no interest in doing so. The demand for Trump's tax returns is purely political, and serves no purpose other than to fish for some impeachable offense. The DOJ is correct to refuse releasing them.

Posted by: Michael Stradley | Jun 15, 2019 5:56:06 PM

Congress certainly could, but instead it passed one that says they’re confidential. The House of Representatives has to follow the law, just like anyone else.

Posted by: Stan Fardle | Jun 15, 2019 6:24:41 PM

More like "A Co-Equal Branch of Government has the power to call "Bullsh*t" when Congress is engaged in exercising political powers, not legislative powers."

Posted by: Brad Bettin | Jun 15, 2019 6:47:03 PM

"It seems like the executive branch thinks they have oversight power over the legislative."

You seem to have missed the requirement that the information sought would serve some ***legislative*** purpose.

What ***legislative*** purpose would be served by requiring every POTUS to release such private information?

Further, Congress has no power to impose an additional qualification on a POTUS, other than the ones specified in the Constitution itself. That's elementary Constitutional law.

End of story.

Posted by: Jay Link | Jun 15, 2019 6:58:37 PM

Ppl should generally read before commenting.

The memo’s only 30 some pages long and clarifies legislative purpose.

Posted by: Anon | Jun 15, 2019 7:01:43 PM

Sure, the Congress could pass a law - if it could override a filibuster in the Senate and then get a 2/3 vote in both the House and Senate to override the President's veto.

Posted by: Roy Lofquist | Jun 15, 2019 7:59:24 PM

Congress would have the power to pass such a law, but the Senate would also have to agree and the President would have to sign it. Good luck with that before 2025.

Posted by: Edward Nutter | Jun 15, 2019 8:02:45 PM

The Branches are co-equal. I think the executive branch should release the returns of all Members to the public for administrative purposes.

Posted by: Johnv2 | Jun 15, 2019 8:34:27 PM

Congress could, but Congress didn't. The problem is that the law Congress did pass empowers Congress to ask for the president's tax records. The Constitution, however, does not give Congress the power to do much of anything other than pass laws. So any statutory grant of powers must be somehow subsumed within the constitutional grant of legislative power or impeachment power. The DOJ is arguing that the statutorily granted power to request the president's returns must be interpreted to mean when there is a legislative (or impeachment) purpose. Otherwise, that grant of power to Congress is unconstitutional.

Posted by: brad | Jun 15, 2019 9:06:05 PM

Bruce, what purpose does the legislative branch have with POTUS tax returns but to use them for nefarious purposes ??

Posted by: Tango | Jun 15, 2019 9:09:47 PM

Bruce: Until congress passes such a law it is not a law and the DOJ is likely correct as is President Trump in denying them his tax returns..

Posted by: Steve Walser | Jun 16, 2019 12:50:01 AM

Congress has not passed a law to make President's tax returns public. The House Democrats are pretending that there is such a law or that they can just rule the country by fiat.

Posted by: Tom | Jun 16, 2019 1:24:11 AM

Bruce, and what leads you to those three observations?

Posted by: Don | Jun 16, 2019 3:39:57 AM

Bruce:

1) HAS Congress passed such a law? One supposes that it's arguable that they COULD but since they have not, your point is irrelevant.

2) What "legislative purpose" would there be in that, exactly?

3) In what way would you say that the Executive Branch, by refusing Congressional access to a President's tax records, is somehow exercising "oversight" over the legislature?

Rather, in this case, the reverse is true: the legislature is the party attempting to exercise an oversight power which they do not have in this instance.

The President does not serve at the pleasure of the Congressand is not obliged to grant them access to anything and everything they might want. As a co-equal branch of the government, the Executive has prerogatives as well.

Posted by: Bill Archer | Jun 16, 2019 5:29:03 AM

Bruce- not oversight, the Executive is just complying with existing law, not to mention the possible Constitutional privacy protections that could be claimed.

Posted by: Peter Scofield | Jun 16, 2019 5:43:33 AM

Congress may have a power to require making tax returns public. (Then again, they may not.) However, they cannot pass a retroactive law aimed at a particular individual. Ex post facto, Buehler. The Constitution, Buehler.

"It seems like the executive branch thinks they have oversight power over the legislative." Please explain how this relates to the topic. How does keeping Trump's tax returns private give the Exec oversight over the legislative branch? Is this a non sequitor? Defined for me a thousand years ago as "Do you walk to school or carry your lunch."

Posted by: aircav65 | Jun 16, 2019 6:19:46 AM

Sorry, Mr Li. Each branch has a level of oversight over each of the others. Read the Constitution.

Posted by: Brennan | Jun 16, 2019 6:45:30 AM

I suspect that a Democrat-majority congress would not allow a Democrat president's tax returns to be published.

Posted by: Sam L. | Jun 16, 2019 7:08:43 AM

This is clearly a personal vendetta against president Trump. Make all Congessional candidates and incumbents reveal their full tax returns and audit documents first.

Posted by: James Douglas Huggins | Jun 16, 2019 8:00:39 AM

Sure, but a law would have to pass through both houses and not be vetoed.

Posted by: Doctor Mist | Jun 16, 2019 9:58:25 AM

Could competitors glean information from those tax records to the detriment of ongoing business affairs?

Posted by: Esmeralda Alvarez | Jun 16, 2019 4:14:11 PM

@Bruce, certainly Congress could pass such a bill. They can't pass a law, though. Making a bill into a law would require a Presidential signature. Good luck on that.

And the reason it seems like the Executive Branch has oversight power over the Legislative might be because it does. Co-equal branches, remember?

Posted by: Chris J. Breisch | Jun 17, 2019 5:07:01 AM

Bruce: "I would think Congress would have the power to pass a law making all Presidents’ tax returns public."

Why not pass a law making the tax returns of all members of Congress public?

Do you really think the same people who want to leak Trump's tax returns, a felony, would ever hold themselves to the same standard?

Highly doubtful...

Posted by: MM | Jun 17, 2019 7:13:41 PM

I Agree For Sure !!1

Posted by: Curt Pickett | Jun 18, 2019 10:18:24 AM

I THINK ALL CONGRESS NEEDS TO SHOW THEIR OWN TAX RETURNS, SUPPORTING DOCUMENTS, CREDIT SCORES AND BANKRUPTCIES AS WELL AS THE NUMBER OF OVERDRAFTS THEY CREATED MADE PUBLIC AS WELL AS EVERY CONTRIBUTORS' IDENTITY REVEALED TO THE PUBLIC BEFORE THEY TAKE OFFICE. PEOPLE WHO LIVE IN GLASS HOUSES SHOULD NOT THROW STONES.

Posted by: JUDITH | Jun 18, 2019 10:21:28 AM

"There would seem to be a legislative purpose in that."
Are you delusional or sarcastic? The Demwits have been attacking Trump since before his inauguration. The only real "purpose" for any of their actions has been to illegally remove Donald Trump from the White House.

Posted by: Dude McCool | Jun 18, 2019 11:21:48 AM

Congress: "You can't presume that our purpose is political, not legislative. That's mind reading!"
Also Congress: "We know what Trump was thinking when he fired Comey."

Posted by: AMTbuff | Jun 18, 2019 1:06:00 PM

As a business man, no matter how he got his money to start with; inherited, etc. As a private citizen he has certain rights as each of us do, it has now become obvious there are those who would do anything to see him out of office and I mean anything! It is sickening to see and hear the lies that go out over the airwaves most everyday. President Trump acquired his wealth as a private citizen long before he ran for president, now he donates his salary as president to charities. How many of our present government officials would stand the same scrutiny of such investigations after they came to Washington? The president can at the most serve 5 more years, it is time to put the same term limits on Congress

Posted by: Olie Teeter | Jun 19, 2019 6:41:05 AM