Last month, the Justice Department’s Office of Legal Counsel (OLC) released an opinion concluding that the Treasury Department must provide the House Ways and Means Committee tax filing information for former President Donald Trump and his businesses. This new OLC opinion reflects a departure from a Trump-era OLC opinion. The earlier opinion affirmed the Treasury Department’s determination that the Committee lacked a legitimate legislative purpose to seek the records. Indeed, Senator Charles Grassley (R-Iowa), the Ranking Member on the Senate Judiciary Committee, promptly issued a statement criticizing the Justice Department’s “reversal.” In contrast, Rep. Richard Neal (D-Mass.), who sought the tax records as Ways and Means Chair, greeted the opinion positively. “As I have maintained for years, the Committee’s case is very strong and the law is on our side. I am glad that the Department of Justice agrees and that we can move forward,” he said.

To be sure, the turnover in presidential administrations led to new leadership at the Department of Justice, but it would be a mistake to boil this shift in position down to partisanship or persona. Rather, the new OLC opinion reflects a substantive return to the more traditional tension point between Congress and the Executive when it comes to information access disputes: consideration and resolution of competing institutional interests rather than the delegitimization of congressional inquiries that was a hallmark of controversies during the Trump administration.

What comes next? The new OLC opinion is binding on the Treasury Department. Execution on that directive will likely have to wait for another round of litigation after President Trump’s lawyers have now gone to federal court to seek an order prohibiting the production of the tax records to Congress. But a larger question is what the OLC opinion signals about the Justice Department’s view of congressional requests for information that go beyond this particular statute and this particular dispute.

Background on the Controversy

In the wake of the Teapot Dome scandal, Congress amended the tax code to provide its tax committees access to tax returns. The statute at issue arose, in part, out of frustration with the Coolidge administration’s refusal to provide Congress with the tax return information of federal officials suspected of involvement in the scandal. That provision, codified at 6 USC § 6103(f)(1), states that the Treasury Secretary, upon receiving a written request from the chair of the House Ways and Means Committee, Senate Finance Committee, or Joint Committee on Taxation, “shall furnish” any specified tax return or tax return information. 

As a matter of precedent since the last major tax code overhaul in the wake of the Watergate scandal, tax committees have used this provision in a variety of circumstances without denial by the executive branch. They have not tried to use it to seek tax information from a sitting or former president, although, unlike President Trump, other modern presidents released substantial tax information voluntarily.

As OLC and the House Ways and Means Committee consistently noted, the statute is “unambiguous” in its command: “Upon written request…[the Secretary] shall furnish [the] committee with any return or return information specified in such request.” Thus, the legal dispute has centered on whether the Committee is acting in a manner that furthers its legislative responsibilities when seeking the records.

The Committee requested the information in April 2019 and subsequently issued subpoenas for the nearly identical information. The Treasury Department had, after consulting with OLC, refused the initial request. Treasury determined that the Committee’s asserted legislative purpose for requesting the tax records was a “pretext” and that the Committee’s “true purpose” was to publicly disclose the President’s tax returns. OLC responded that Treasury’s determination about pretext was “reasonabl[e]” and that Section 6103(a) barred disclosure of the information to the Committee notwithstanding the mandate of section 6103(f)(1) because it Committee lacked a legitimate legislative purpose. Later, OLC issued a more fulsome legal analysis that concluded the Treasury Department determination about the Committee’s pretext was not only reasonable, but accurate.

In July 2019, the Committee filed suit against the responsible executive branch agencies and officials seeking declaratory and injunctive relief under the Internal Revenue Code. The case was assigned to Judge Trevor McFadden in the U.S. District Court for the District of Columbia. In its complaint, the Committee described its legislative purpose:

The Committee is investigating the IRS’s administration of various tax laws and policies relating to Presidential tax returns and tax law compliance by President Trump, including whether the IRS’s self-imposed policy of annually auditing the returns of sitting Presidents is working properly, even though it has not been updated in decades. Indeed, President Trump himself has repeatedly questioned the integrity of the process by which the IRS audits his tax returns, complaining that his returns are under “continuous audit” and that the IRS’s policy of annually auditing Presidential returns is “extremely unfair.”

The Committee moved for summary judgment while the Justice Department and President Trump moved to dismiss the case. On Nov. 6, 2019, the district court heard oral argument on both motions. 

In the meantime, following a request from Chairman Neal, then-acting Treasury Inspector General Rich Delmar conducted a review of Treasury officials’ handling of the Committee’s request. In April 2020, the Inspector General found that Treasury officials had acted properly in denying the Committee’s request. As Delmar summarized the findings: “The core of our inquiry is that [Treasury] processed the request properly, that it sought legal guidance from [OLC], determined it was bound by that office’s advice, and based on that advice determined not to provide the returns and tax information sought.” Delmar further indicated: “We do not presume to opine on the analysis and conclusions of the OLC opinions and advice.”

The case remained pending at the time of the presidential election. After the 2020 election, Chairman Neal indicated the Committee would renew its efforts to obtain the tax records, which culminated in another formal request under the statute in June 2021. Judge McFadden had issued an order staying further proceedings pending a decision by the D.C. Circuit Court of Appeals in the congressional subpoena litigation case, House Judiciary Committee v. McGahn, which was settled in July 2021. On July 30, 2021, the new OLC opinion was released, and on August 4, 2021, former President Trump filed pleadings to block release of his tax returns to Congress.

The 2021 OLC Opinion: What’s New?

The reasoning OLC sets forth in its new opinion points to the restoration of a pre-Trump equilibrium in congressional-executive oversight disputes.

As an initial matter, OLC cites some changes in the factual context that militate in the direction of a new OLC determination. The June 2021 request reiterates the Committee’s original interest in the information: “the extent to which the IRS audits and enforces the Federal tax laws against a President.” It also identifies an interest in determining whether “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.” It further states that “[a]n independent examination might also show foreign financial influences on former President Trump that could inform relevant congressional  legislation.” But those changes strike me as largely atmospheric rather than material to OLC’s shift in position. 

The fundamental change between the 2019 and 2021 opinions — beyond the election outcome — is the level of deference that OLC affords Congress. The initial 2019 OLC opinion is framed as deference to “Treasury’s determination that the Committee’s asserted legislative purpose for requesting the records was a ‘pretext’ and that the Committee’s ‘true purpose’ was to publicly disclose the President’s tax returns.” Later, in 2019, OLC determined that Treasury’s determination that the Ways and Means Committee’s true intent was to make the returns public was not only “reasonable,” but “correct.” So, both Departments — Treasury and Justice — made determinations about congressional motives that OLC then relied upon to resolve the legal question. 

Congress must always have a legitimate legislative purpose when exercising its oversight powers under existing constitutional law precedent. However, neither the courts nor the executive branch have traditionally acted as the arbiter of congressional motives. There is a long line of Supreme Court opinions underscoring the breadth of legitimate areas of congressional inquiry. Watkins v. United States exemplifies the Court’s approach preceding the Trump administration:

The power of Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the federal government to expose corruption, inefficiency or waste.

Other cases contain similar expansive pronouncements. 

But in Trump v. Mazars, President Trump successfully invited the Supreme Court to adopt a test envisioning judicial review of congressional motives. Quoting Watkins, the Court recited its prior recognition of the legitimacy of searching congressional inquiry: “The congressional power to obtain information is ‘broad’ and ‘indispensable.’” Where the President’s papers are involved, however, the Court sought to address “unique” separation of powers issues. As such, it embedded in its new test a judicial role: “courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.”

The 2021 OLC opinion looks like an effort to recalibrate the tension point. In 2021, OLC is critical of the lack of deference shown Congress in the 2019 opinion: “The 2019 Opinion went astray, however, in suggesting that the Executive Branch should closely scrutinize the Committee’s stated justifications for its requests in a manner that failed to accord the respect and deference due a coordinate branch of government.” In 2019, as noted above, OLC came to a stark determination about Congress’s motives (“not only reasonable, but correct”). In 2021, OLC takes a much more deferential tone: “Particularly in light of this special statutory authority, Treasury should conclude that a facially valid tax committee request lacks a legitimate legislative purpose only in exceptional circumstances.” 

What Larger Significance May It Hold?

This shift in reasoning points to a core difference between the Trump administration and other post-Nixon administrations of both political parties about where the primary battle line is drawn in information access disputes. 

Traditionally, the battle line articulated by the executive branch is about competing interests:  legitimate congressional information needs versus various executive branch confidentiality interests. A classic formulation can be found in the Clinton administration in a letter from then-Assistant Attorney General Robert Raben to Rep. John Linder (R-Minn.) as a subcommittee chair of the House Rules Committee: 

In implementing the longstanding policy of the Executive Branch to comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch, the Department’s goal in all cases is to satisfy legitimate legislative interests while protecting Executive Branch confidentiality interests. 

The Clinton-era letter echoed a 1982 memorandum by President Ronald Reagan that declared: 

The policy of this Administration is to comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. . . . [E]xecutive privilege will be asserted only in the most compelling circumstances, and only after careful review demonstrates that assertion of the privilege is necessary.

In contrast, President Trump’s White House legal teams, as well as the Department of Justice, frequently argued that Congress acted with improper or illegitimate motives that negated its authority to obtain executive branch information. The 2019 OLC opinions on President Trump’s tax materials are emblematic of this strategy, but are not the sole examples. The position President Trump and the Department of Justice took in the Mazars and Deutsche Bank litigation followed this pattern. Another example can be found in a March 2019 letter by White House Counsel Pat Cipollone responding to an inquiry from Rep. Elijah Cummings (D-Md.), Chair of the House Oversight and Reform Committee, seeking information about White House security clearance procedures stemming from a whistleblower’s allegations. In that letter, Cipollone shifted the presumption of legitimate legislative need, calling on the committee to justify “how your regulatory needs depend on the particular information you seek.” 

Across numerous congressional investigations during the Trump administration, there was not just an effort to assert confidentiality interests, but a consistent effort to delegitimize the congressional interest in the material.

To be sure, this is not the first instance that the politics of delegitimization has appeared in disputes between Congress and the White House. For starters, Congress’s view of its plenary oversight powers leaves little room for legitimacy of executive branch confidentiality interests. Congress often expresses outrage at the stonewalling of executive branch officials who raise concerns about the scope or harm of a requested disclosure. Similarly, many White House messaging efforts have targeted congressional motives. However, the legal arguments submitted to Congress by the executive branch have typically asserted the relative importance of an agency’s confidentiality interest rather than an attack on congressional motives. For a lengthy discussion of why there is asymmetry in the language of legitimacy in interbranch disputes, see Constitutional Conflict and Congressional Oversight.

The Trump administration advanced the legal battle line from a balancing of competing interests to impugn congressional purposes as illegitimate. Admittedly, the 2021 opinion may appear to leave a door open by suggesting the executive may still determine “in exceptional circumstances” that a congressional request lacks a legitimate legislative purpose. But to focus on that language is to miss how far the OLC has rotated back to the baseline set before the Trump administration and repudiated the prior administration’s approach. The 2021 OLC opinion’s suggestion that its prior analysis “went astray” by failing to provide sufficient deference to a coordinate branch of government likely signals an endorsement of deference in legal argument as to congressional motives that will transcend this particular dispute over the taxpayer information statute.


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