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Justice releases legal opinion backing Treasury’s refusal to release Trump tax returns

The opinion comes after Treasury Secretary Steven Mnuchin last month rejected a subpoena from House Ways and Means Committee Chairman Richard Neal (D-Mass.) demanding Trump’s personal and business tax returns from 2013 through 2018.  When Mnuchin rejected Neal’s request, he said he did so upon the advice of DOJ, and that the Justice Department would publish a legal opinion with its advice.
Both Mnuchin and Neal have said they expect the tax return issue to end up in the courts.
Neal requested Trump’s tax returns through a provision of the federal tax code that states that the Treasury secretary “shall furnish” tax returns sought by the chairmen of Congress’s tax committees, so long as the documents are viewed in a closed session.  If a committee obtained tax returns, it could vote to submit a report to the full House or Senate and return information in that report could become public.  Neal’s requests stated that he wants Trump’s tax returns because the Ways and Means Committee is conducting oversight and considering legislative proposals relating to how the IRS audits presidents.

But DOJ said in its opinion, which was addressed to the Treasury Department general counsel, that it agreed with Treasury that Neal’s stated reason for seeking the tax returns is pre-textual and that his real reason for wanting the documents is to make them public.  “No one could reasonably believe that the Committee seeks six years of President Trump’s tax returns because of a newly discovered interest in legislating on the presidential-audit process,” DOJ wrote. “The Committee’s request reflects the next assay in a longstanding political battle over the President’s tax returns.”

DOJ noted that the text of the federal tax code provision Neal cited doesn’t require a congressional tax committee to state a reason when requesting tax returns. But the department said the statute couldn’t give a committee the right to receive confidential information that lacks a legitimate legislative purpose.

“Congress could enact legislation that makes tax returns available to the public at large, but it has chosen instead to make them confidential and to prohibit Treasury from releasing them to unauthorized persons,” the opinion states. “Lacking any role in implementing the laws itself, Congress may confer upon its agents a right to request and receive confidential information only to the extent necessary to serve a legitimate legislative end.”

Neal has argued that it’s not proper for Treasury or DOJ to second guess a congressional committee’s determinations about its need for tax returns, but DOJ criticized that argument.  “Just as Congress may not empower its agents to exceed the boundaries of legitimate legislative power, an assertion from a committee chairman may not prevent the Executive from confirming the legitimacy of an investigative request,” the DOJ said.  the Justice Department also said that Treasury’s refusal to provide Trump’s tax returns to Neal does not violate a federal contempt of Congress law or a law making it a crime for a federal employee to fail to preform the duties of his or her job with an intent to defeat a tax-code provision.

The department said that in rejecting Neal’s request, he was following a provision of the federal tax code that bars unauthorized disclosures of tax returns.

Democrats blasted DOJ’s opinion, arguing that the administration had decided a while ago that it would not comply with a request for Trump’s tax-returns and that the opinion was pretext.

“This so-called ‘legal opinion’ came after the President publicly stated his Administration’s intention to illegally refuse the Chairman’s request, which was followed by Secretary Mnuchin’s statement to our Committee that OLC would issue an opinion justifying that refusal,” said Rep. Don Beyer (D-Va.), a member of the Ways and Means Committee. “The legal opinion did not come first, it came last in order to justify a decision that the President made to ignore the law after the fact, and everyone watched this ridiculous farce play out.”

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