The DOJ’s Office of Legal Counsel released a disgraceful opinion on Friday afternoon that Trump can hide his tax returns.
OLC Says Trump Can Hide His Tax Returns
For all the foregoing reasons, we believe that the Secretary reasonably and correctly concluded that the Committee’s stated purpose was pre-textual and its actual purpose was simply to provide a means for public disclosure of the President’s tax returns. Given that Congress may not pursue public disclosure for its own sake, see, e.g., Hutchinson, 443 U.S. at 133; McMillan, 412 U.S. at 330; Watkins, 354 U.S. at 200, disclosure was not authorized under section 6103(f), and section 6103(a) therefore required Treasury to maintain confidentiality of the requested tax information.
Because section 6103(a) prohibited the disclosure of the tax returns sought in Chairman Neal’s April 3 request, as well as in the corresponding subpoenas, Treasury’s refusal to provide the information did not violate either 26 U.S.C. § 7214(a)(3) or 2 U.S.C. § 192. Under 26 U.S.C. § 7214(a)(3), it is a crime for “[a]ny officer or employee of the United States acting in connection with any revenue law of the United States” to “fail[] to perform any of the duties of his office or employment” “with the intent to defeat the application of any provision” of the Internal Revenue Code. Treasury’s denial to the Committee of the requested information did not violate that statute. Far from a failure to perform any “duties” in connection with the revenue law, the Secretary and other officials at Treasury faithfully implemented their duties under section 6103(a) in response to a request for a disclosure that would not be authorized under section 6103(f). In addition, given the statute’s intent requirement, they did not act with an “intent to defeat the application of” section 6103(f), when they acted in good faith after consulting with you and with this Office.
The OLC Opinion Is A Disgrace
As Walter Shaub tweeted:
OLC releasing this opinion late on a Friday is a sign that even OLC knows it should be ashamed of this opinion.
— Walter Shaub (@waltshaub) June 14, 2019
The OLC opinion also notes that when Democrats challenge Mnuchin in court, they are going to lose and be required to turn over Trump’s tax returns.
The opinion is a disgrace because it follows the same bogus and flawed reasoning that the House Ways and Means Committee has to have valid legislative reason to request Trump’s returns. The law is very clear. If Ways and Means request them, Treasury has to turn them over. The Trump administration will lose in court, but the OLC opinion how deeply Donald Trump has corrupted the Executive Branch of the federal government.
The tax returns will be turned over, but the damage that Trump is doing to the DOJ won’t be easily repaired.
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Awards and Professional Memberships
Member of the Society of Professional Journalists and The American Political Science Association
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