Support The Bulwark and subscribe today.
  Join Now

DOJ: IRS Must Give Congress Trump’s Tax Returns

Overriding a Bill Barr-era decision, new DOJ memo says the IRS “must comply” with Congress’s request.
August 2, 2021
Trump Tower, home to the Trump Organization, stands along Fifth Avenue on June 30, 2021 in New York City. According to reports, federal prosecutors with the Manhattan district attorney's office are expected to charge the Trump Organization, and its CFO Allen Weisselberg, with tax-related crimes as soon as Thursday. (Photo by Spencer Platt/Getty Images)

A blockbuster opinion issued by the Department of Justice on Friday means that Congress is likely at long last to see Donald Trump’s elusive tax returns. The opinion declares that “the Chairman of the House Ways and Means Committee has invoked sufficient reasons for requesting the former President’s tax information”—a vindication for the years-long effort by Congress to see these returns, and a defeat for the former president who worked hard to keep them secret (suggesting that there are proverbial bodies buried in there). The opinion is also yet another example of the abject lawlessness of Bill Barr’s DOJ for refusing to hand them over earlier.

The quest for Trump’s tax returns dates back to April 2019—over 27 months ago—when Rep. Richard Neal (D-Mass.), chairman of the House committee that oversees tax matters, the Ways and Means Committee, made a formal, written demand to the IRS for six years of Trump’s personal returns and all the returns from eight of his businesses.

Under Secretary Steven Mnuchin, the Treasury Department declined, asking DOJ for an opinion as to whether the IRS was required to comply. Predictably, DOJ’s elite Office of Legal Counsel (OLC)—which has historically operated as something like a mini-Supreme Court within the executive branch for obtaining measured opinions on murky questions of constitutional law—obliged Trump’s personal interests and determined in a June 2019 memorandum that Mnuchin could refuse Neal’s request. That opinion issued above the signature of then-Assistant Attorney General Steven A. Engel (who also authored an internal DOJ memo justifying Barr’s decision to preempt the Mueller report with a summary of its “principal conclusions”—a sleight-of-hand that a federal judge slammed in a blistering decision this May).

Also in April 2019, three other House committees subpoenaed information about Trump, his children, and affiliated businesses from Deutsche Bank, Capital One, and Trump’s personal accounting firm, Mazars USA LLP. In July 2020, the U.S. Supreme Court—in Trump v. Mazars, a 7-2 ruling authored by Chief Justice Roberts and joined by the Trump-appointed Justices Kavanaugh and Gorsuch—held that the banks and accountants had to comply with the subpoenas, noting that “each House of Congress has the power ‘to secure needed information’ in order to legislate,” and that such power is “‘indispensable’ because, without information, Congress would be unable to legislate wisely or effectively.” The Court also reiterated its longstanding position that a congressional subpoena is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.”

It’s this caveat that Engel had seized upon in refusing Rep. Neal’s request back in 2019. Engel had argued that Mnuchin “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.”

Engel was dead wrong.

There’s a glaringly dispositive legal distinction between Neal’s request and the third-party subpoenas in Mazars: The House Ways and Means Committee has express statutory authority to obtain tax returns from the IRS—without having to provide any excuses or reasons for doing so. And the committee’s reasons for wanting the returns are unquestionably legitimate, regardless of whether the revealing of Trump’s tax information would be to the political advantage of congressional Democrats.

Consider a bit of tax-law history: Congress enacted an income tax during the Civil War, pursuant to its articulated constitutional authority to “lay and collect taxes.” For a time, only the president and Treasury secretary could permit the disclosure of tax information. But in the wake of the Teapot Dome bribery scandal under President Warren G. Harding, Congress decided it needed its own access to tax records of federal officials suspected of wrongdoing. As part of the Revenue Act of 1924, it singled out Ways and Means—as well as the Senate Finance Committee and a then-unspecified “special” committee—as having “the right to call on the Secretary of the Treasury for, and it shall be his duty to furnish, any data of any character contained in or shown by the returns . . . that may be required by the committee.”

Later, the Internal Revenue Code of 1954 added language providing that whenever any of these congressional tax committees requests tax returns, the Secretary of the Treasury “shall furnish such committee sitting in executive session with any data of any character contained in or shown by any return.” (Emphasis added.) Finally, in the Tax Reform Act of 1976, Congress limited the executive branch’s access to tax returns, requiring that they be kept “confidential, . . . except as authorized by this title,” including “upon written request from the chairman of the Committee on Ways and Means of the House of Representatives.”

In short, the law is unambiguous: When the chairman of a tax-related congressional committee asks to see tax returns, the secretary of the Treasury must hand them over, with the only limitation being that the committee must meet behind closed doors and not in public, “unless such taxpayer otherwise consents in writing to . . . disclosure.” The law makes no exclusions for sitting or former presidents.

Barr’s DOJ effectively blew off this mandate—and thumbed its nose at the constitutional authority of Congress itself to pass legislation and to lay and collect taxes. It acknowledged the clear statutory authority for Rep. Neal’s request, but made the spurious argument that the Ways and Means Committee’s true purpose was to blab publicly about Trump’s taxes, and that the executive branch, unlike a court, may “engage in searching inquiries about congressional motivation,” and need not apply the sort of “deference to the decisions of the political branches of government.”

This is made-up stuff.


And it’s pretty frightening, because it wasn’t the first instance that Bill Barr just ignored binding law. As I wrote in October 2019,

when an intelligence-community insider accused Trump of using American military aid as a lever to make Ukraine pursue a baseless investigation of Joe Biden and his son, . . . the governing statute legally obligated the acting director of national intelligence to hand over the complaint to Congress. Instead, Barr’s Justice Department issued an irresponsible legal opinion to justify keeping the whistle-blower complaint from Congress—despite the inspector general’s official determination that the complaint was “credible” and of “urgent concern,” thereby triggering congressional oversight.

The reasons for Neal’s request, which has been updated since Joe Biden took office, include that “former President Trump’s tax returns could reveal hidden business entanglements raising tax law and other issues, including conflicts of interest, affecting proper execution of the former President’s responsibilities,” and that an “independent examination” of those documents “might also show foreign financial influences on former President Trump that could inform relevant congressional legislation.” There is ample justification.

Meanwhile, Tom Barrack, a real-estate investor who chaired Trump’s 2017 presidential inaugural fund, was recently arrested on federal charges that he secretly acted as a foreign agent for the United Arab Emirates during the Trump presidency. Barrack oversaw Trump’s $107 million inaugural fundraising effort, which involved $1 million from an unknown donor that was funneled through a limited liability company. He also worked with former Trump campaign chair Paul Manafort on a super PAC called Rebuilding America Now that spent $21 million in support of Trump, and was reportedly under federal investigation for potentially using straw donors to enable countries like Qatar, Saudi Arabia, and the UAE to make illegal donations. Separately, a jury convicted Manafort on eight felony counts brought by Special Counsel Robert Mueller, including filing false tax returns, bank fraud, and failing to disclose a foreign bank account.

It is easy to slip into blissful amnesia when it comes to the shameless law-breaking of the Trump administration and the ex-president’s many criminal cronies. With so much of our collective focus on the gaslighting in Congress over the January 6 insurrection and the validity of COVID vaccines and mask mandates, the fate of the rule of law in America feels less urgent. But the toxic muck left by the Trump administration remains. DOJ’s about-face on the executive branch’s constitutional obligation to adhere to the law is a critical step in the vital clean-up.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.