Justice Department tells Treasury to turn over Trump tax records to House

New opinion defers to Congress about how much of the information could become public in a report to the House

Ways and Means Chairman Richard E. Neal attends a news conference in the Capitol Visitor Center on Friday, the same day the Justice Department sided with his request to see former President Donald Trump's tax records. (Tom Williams/CQ Roll Call)
Ways and Means Chairman Richard E. Neal attends a news conference in the Capitol Visitor Center on Friday, the same day the Justice Department sided with his request to see former President Donald Trump's tax records. (Tom Williams/CQ Roll Call)
Posted July 30, 2021 at 4:00pm

The Justice Department told the Treasury Department on Friday that it must turn over former President Donald Trump’s tax returns and information to the House Ways and Means Committee — although a legal fight could remain.

The opinion from the Office of Legal Counsel reverses course from the DOJ’s 2019 opinion, during the Trump administration, to an initial request from Chairman Richard E. Neal, D-Mass. The Ways and Means Committee sued the Treasury Department for the information in a case still pending in the federal courts.

The Justice Department on Friday wrote that it reevaluated after Neal made a new request for the information last month for tax years 2015 through 2020. Neal wrote that the committee sought to evaluate, among other issues such as national security, “the extent to which the IRS audits and enforces the Federal tax laws against a President.”

That is “a plainly legitimate area for congressional inquiry and possible legislation,” the Justice Department wrote, “even if some individual legislators might have other reasons for wanting access to the information.”

The department’s previous position acknowledged that the law does not require Neal to state a purpose when requesting tax returns. But the Justice Department back then concluded that Congress can’t give itself the right to compel information that does not serve a legitimate legislative purpose, and that Neal’s request was “pretextual.”

The OLC also said Neal’s request “amounted to an unprecedented use of the Committee’s authority and raised a serious risk of abuse.”

Now the Justice Department says its Trump-era opinion went wrong by suggesting the executive branch should closely scrutinize the committee’s stated justification for requesting that information.

“The statute at issue here is unambiguous: ‘Upon written request’ of the chairman of one of the three congressional tax committees, the Secretary ‘shall furnish’ the requested tax information to the Committee,” the Justice Department wrote Friday.

Trump could still try to scuttle any transfer of his tax records since he intervened in the Ways and Means Committee’s lawsuit against the Treasury Department. A federal judge overseeing that case has an order that requires 72 hours of notice to Trump’s lawyers before any release of the former president’s tax information to the committee.

Speaker Nancy Pelosi called the new Justice Department opinion a victory for the rule of law. Sparked by media reports ahead of the November election that Trump is personally responsible for more than $300 million in loans, she has questioned whether that gives other countries leverage over the then-commander in chief.

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

The efforts to obtain Trump’s personal tax returns had been a priority among activists and Democrats since control of the House switched after the 2018 midterms. Trump was the first major party presidential candidate since Richard Nixon not to release his tax returns, despite multiple promises on the campaign trail and since. At the time, he claimed he would not do so while under audit by the IRS.

Neal, in a news release, said he has maintained for years that the committee’s case is “very strong and the law is on our side” and that he is “glad that the Department of Justice agrees and that we can move forward.”

Rep. Kevin Brady of Texas, the top Republican on the Ways and Means Committee, in a news release said the DOJ opinion “sets a dangerous precedent that weaponizes the tax code by giving Congress the dangerous power to rummage through anyone’s private tax returns for purely political reasons.”

“If politicians in Congress can demand, and ultimately make public, the President’s private tax returns, what stops them from doing the same to others they view as a political enemy?” Brady said.

House Democrats leaned on a 1976 statute, enacted in the wake of the Watergate scandal revelations, that requires the Treasury Department to provide “any” tax return requested by the Ways and Means chairman in writing.

Steven Mnuchin, a former Treasury secretary under Trump, refused to comply with two written requests and then did not comply with a subpoena. At the time, Mnuchin argued that Democrats intended to use the returns to their political advantage and that they should not be handed over.

The Justice Department’s new opinion defers to Congress about how much of the information could become public in a report to the House, writing that “presumably it would not do so purely ‘for the sake of exposure.’”

“We cannot know where receipt of the requested tax information will take the Committee, any more than the Committee itself can predict what it will find or determine,” the Justice Department wrote.

“After reviewing and analyzing the information, it will be squarely within the Committee’s responsibility to decide whether or not to include some of that information in a report to the full House that might be available to the public.”