Judge questions flip on House request for Trump tax records

Judge asked what happens if Congress changes hands and a Republican chairman makes a request for the tax records of Hunter Biden

Reporters question chairman of the House Ways and Means Committee Rep. Richard Neal, D-Mass., as he leaves the House Democrats caucus meeting last month. (CQ Roll Call file photo)
Reporters question chairman of the House Ways and Means Committee Rep. Richard Neal, D-Mass., as he leaves the House Democrats caucus meeting last month. (CQ Roll Call file photo)
Posted November 16, 2021 at 5:55pm

A federal judge questioned Tuesday whether the Biden administration’s decision to turn over Donald Trump’s tax records to Congress applies only to the former president.

U.S. District Judge Trevor N. McFadden, during a hearing about whether to dismiss the more than two-year-old legal clash, brought up how the federal government switched positions in July on the request from House Ways and Means Chairman Richard E. Neal, D-Mass.

The case is a tangle of issues related to congressional power to investigate that McFadden must consider as he decides what to do next.

He faces arguments about harm to Trump if the records are exposed, and different legal tests about congressional powers, including one from the Nixon era and one fresh from the Trump administration that are central to other ongoing cases

Back in 2019, the Trump administration had denied the initial subpoena and argued Neal’s request did not have a legitimate legislative purpose. The committee filed a lawsuit against the Treasury Department that has never been resolved.

But the Biden administration reevaluated after Neal made a new request this year for substantially the same information for tax years 2015 through 2020. A July opinion from the Justice Department’s Office of Legal Counsel reversed course and said there was a legitimate legislative purpose.

On Tuesday, McFadden pressed a Justice Department attorney about the flip-flop that has now put House Democrats and the Treasury Department on the same side of the case. “I have a hard time imagining you’re going to keep that view for anything other than this request,” McFadden said.

McFadden also asked what if Congress changes hands and a Republican chairman makes a request for the tax records of Hunter Biden, a president’s son. Is the Justice Department “just going to say, ‘Oh, sure, we’ve got to defer to Congress.’ Is that going to be the administration’s position?” McFadden said.

James Gilligan, representing the federal government, told McFadden the administration’s motives don’t matter at all.

The Justice Department memo from July noted the issue is “unambiguous,” noting the statute says “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.

Patrick Strawbridge, an attorney for Trump, picked up on the issue as he argued the case should continue, even though the political branches are on the same side and Trump is not president. In part, he cited statements from members of Congress that suggested making the information public.

Strawbridge told McFadden the position of the executive branch until very recently was that it was “implausible to believe that there was a legitimate legislative purpose animating the committee's request.”

House General Counsel Doug Letter told McFadden that Congress plainly has a valid purpose to get the records, such as looking into the IRS’s program to audit presidential taxes and then deciding whether it should be made into a law.

And Letter said the previous Justice Department opinion was under Trump, and now, “Trump is not the boss.” He said Biden has said the disclosure is required by law.

“There is no clash of branches here,” Letter said, adding that once a judge determines Congress has a legitimate legislative purpose, then the case is over and McFadden should rule quickly.

The dispute is about Neal’s request for information through a law that gives the Ways and Means Committee chairman the power to get it, Letter said, and not about any comments from other members of Congress about why they want the records.

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.

McFadden said he would try to rule in the next few weeks, and that the case is in “uncharted territory with a case like this with the former president.” And McFadden nodded to the litigious environment around House Democrats and Trump. “I’m quite sure no matter what I say, it would not be the last word on this topic,” McFadden said.