A Tale Of Two OLCs

The Biden OLC disagrees with the Trump OLC on the House's requests for Trump's tax returns.

In 2019, the House Ways and Means Committee requested six years of President Trump's tax returns. At the time, OLC issued an opinion finding that the Treasury Department could refuse to provide the information. Here, Treasury determined that the Committee's stated purpose–lawmaking–was pretextual. The real reason, Treasury concluded, was to expose Trump's tax returns to the public. OLC found this conclusion was reasonable:

In view of these marked discrepancies in the public record, Treasury, quite reasonably, concluded that Chairman Neal had not articulated the real reason for his request. The Chairman's request that Treasury turn over the President's tax returns, for the apparent purpose of making them public, amounted to an unprecedented use of the Committee's authority and raised a serious risk of abuse.

Moreover, OLC advised that Treasury could determine whether the stated purpose was legitimate:

While the Executive Branch should accord due deference and respect to congressional requests, the Executive need not treat the Committee's assertion of the legitimacy of its purpose as unquestionable. Id. The President stands at the head of a co-equal branch of government, and he is separately accountable to the people for the faithful performance of his responsibilities. Treasury thus had the responsibility to confirm for itself that the Chairman's request serves a legitimate legislative end. Id.

Under the circumstances, we agreed that it was reasonable to conclude that the Committee's asserted interest in the IRS's audit of presidential returns was pretextual, and that the true aim was to make the President's tax returns public.

One year later, the Supreme Court decided Mazars v. Trump. The decision advanced a complicated balancing test to determine whether the returns must be provided. To date, the House still has not received Trump's records.

In June 2021, the Ways and Means Committee requested the records of former President Trump. And on July 30, OLC advised that Treasury must release the returns. In the process, the Biden OLC criticized the Trump OLC–though the departure in doctrine is actually somewhat modest.

The primary difference between the two OLCs concerns the so-called "presumption of regularity." Under this presumption, courts will generally presume government officials are acting in good faith. The Biden OLC says the Trump OLC erred by failing to grant the Committee the presumption of regularity:

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. Id. at *24–26. The 2019 Opinion also failed to give due weight to the fact that the Committee was acting pursuant to a carefully crafted statute that reflects a judgment by the political branches, going back nearly a century, that the congressional tax committees should have special access to tax information given their roles in overseeing the national tax system. 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.

The "presumption of regularity" was widely discussed over the past four years. Routinely, the Trump Administration asked the federal courts to afford its actions the presumption of regularity. And consistently, the lower courts failed to follow that presumption, finding that the government's justifications were pretextual. This dynamic arose in the context of the travel ban, the census litigation, and many other cases. Now, the Biden OLC faults the Trump OLC for denying the House Committee the presumption of regularity.

The presumption of good faith and regularity does not mean that the Executive Branch must "blindly accept a pretextual justification" offered by a committee to justify an informational request. Id. at *17. But especially where, as here, a tax committee requests tax information pursuant to section 6103(f )(1) and has invoked facially valid reasons for its request (despite the statute's not requiring any), the Executive Branch should conclude that the request lacks a legitimate legislative objective only in exceptional circumstances.

Generally, the presumption of regularity arises when a court reviews some governmental action. But OLC explains that the Executive Branch must afford that same presumption to the Legislative Branch.

The Executive Branch should likewise presume that congressional agents are acting pursuant to their constitutional authority and in good faith when evaluating the constitutionality of committee requests for information. Such a presumption reflects a general principle of inter-branch comity that is applicable to interactions among all three branches. Consistent with the respect due Congress as a coordinate branch, it has 

The Trump OLC vigorously rejected this form of "interbranch comity." Assistant Attorney General Engel explained that the Executive Branch is accountable to the people, and must assert for itself whether the request is legitimate:

While the Executive Branch should accord due deference and respect to congressional requests, the Executive need not treat the Committee's assertion of the legitimacy of its purpose as unquestionable. Id. The President stands at the head of a co-equal branch of government, and he is separately accountable to the people for the faithful performance of his responsibilities. Treasury thus had the responsibility to confirm for itself that the Chairman's request serves a legitimate legislative end.

And, Engel explained, this independence is rooted in the separation of powers. The Executive Branch must resist intrusions by the Legislative Branch:

In doing so, Treasury acts as part of a politically accountable branch with a constitutional duty to resist legislative intrusions upon executive power and therefore does not act under the same institutional constraints as the Judiciary. . . . The head of the Executive Branch, who is elected separately from Congress, ultimately must answer to the people for the manner in which he exercises his authority. The separation of powers would be dramatically impaired were the Executive required to implement the laws by accepting the legitimacy of any reason proffered by Congress, even in the face of clear evidence to the contrary. In order to prevent the "special danger . . . of congressional usurpation of Executive Branch functions," Mistretta, 488 U.S. at 411 n.35, we believe that Treasury must determine, for itself, whether the Committee's stated reason reflects its true one or is merely a pretext. 

Acting Assistant Attorney General Johnsen said Engel was "mistaken."

We believe that this argument in the 2019 Opinion was mistaken. Of course, "'a legislative choice is not subject to courtroom factfinding,'" id. at *25 (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315 (1993))—but neither is it subject to factfinding in the halls of the Treasury and Justice Departments. The 2019 Opinion emphasized that the Executive Branch—unlike the courts—"operates as a politically accountable check on the Legislative Branch." Id. It is true that the Constitution divides sovereign authority between the political branches, and that division of authority ensures that "those who administer each department" possess "the necessary constitutional means, and personal motives, to resist encroachments of the others." The Federalist No. 51, at 349 (James Madi-son) (Jacob E. Cooke ed., 1961). That rivalrous relationship, however, also can lead each branch to inappropriately discount the legitimate interests of the other. See Mazars, 140 S. Ct. at 2032–35 (faulting both the President and the House for failing to give adequate weight to the interests of the other). And the Judiciary is designed to be neutral and disinterested. The relative competencies and capabilities of the Judiciary and the Executive, in other words, hardly offer a reason for the latter to deviate from the presumptions and norms of deference that the courts rightly apply when assessing the justifications of the political branches.

This paragraph, in a nutshell, illustrates the divide between the two OLCs. The Trump OLC viewed the Democratic-controlled House Committee as a rivalrous opponent that was trying to weaken the political President. And the Biden OLC views the Democratic-controlled House Committee as a coordinate branch of government that is entitled to the presumption of regularity.

Indeed, the Biden OLC discounts the role that politics plays. Here, AAG Johnsen adopts something of a "mixed motives" approach–even if some of the motivations behind the request were partisan, there was still alternative, legitimate reasons.

Moreover, the fact that a congressional request for information might serve partisan or other political interests is generally irrelevant to assessing its constitutionality, provided the request is, in fact, in the furtherance of a legitimate legislative task—just as presidential policy decisions are not suspect simply because the President may calculate that certain decisions will redound to his or her political benefit. "[T]he motives of committee members . . . alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly's legislative purpose is being served." Watkins, 354 U.S. at 200; see also Eastland, 421 U.S. at 508 ("[I]n determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it."). Such mixed congressional motivations are commonplace. Congress is composed of elected members who stand for re-election. It is therefore neither unusual nor illegitimate for partisan or other political considerations to factor into Congress's work. If the mere presence of a political motivation were enough to disqualify a congressional request, the effect would be to deny Congress its authority to seek information—a result that is incompatible with the Constitution. 

When I read this paragraph, I chuckled out loud. OLC explains, with precision, how I've viewed mixed motives for years. I made this point in a New York Times op-ed:

Politicians pursue public policy, as they see it, coupled with a concern about their own political future. Otherwise legal conduct, even when plainly politically motivated — but without moving beyond a threshold of personal political gain — does not amount to an impeachable "abuse of power."  . . . Politicians routinely promote their understanding of the general welfare, while, in the back of their minds, considering how those actions will affect their popularity. Often, the two concepts overlap: What's good for the country is good for the official's re-election. All politicians understand this dynamic, even — or perhaps especially — Mr. Trump. And there is nothing corrupt about acting based on such competing and overlapping concerns. Politicians can, and do, check the polls before casting a difficult vote. Yet the impeachment trial threatens to transform this well-understood aspect of politics into an impeachable offense.

Consistently, President Trump acted with mixed motives: he was motivated by a desire to promote the public interest, as he saw it, and in the process advance his political prospects. Much of the so-called legal resistance was designed to take way the President's power to govern. But it is neither "unusual nor illegitimate for partisan or other political considerations to factor" into the President's work. This discussion of mixed motivates is perhaps the most important section of the entire OLC opinion. In an effort to dunk on the Trump OLC, the Biden OLC has greenlighted future expansions of executive power based on presidential mixed motives.

Ultimately, the Biden OLC found that the dynamics are different now that Trump is out of office.

We question whether these objections were well-taken at the time. In any event, we now conclude that none offers a basis for calling into question the auditing rationale de-scribed in the Chairman's new June 2021 Request. 

Sitting Presidents are protected from certain types of burdens. Former Presidents are not.

More to the point, the June 2021 Request seeks the tax information, not of a sitting President, but of a former President. This distinction greatly mitigates the Court's concerns about Congress using its investigatory power to exert control over the President—to "render him complaisan[t] to the humors of the Legislature." Id. at 2034 (internal quotation marks omitted). Similarly, the June 2021 Request does not threaten an "'unnecessary intrusion into the operation of the Office of the President'" or to impose "burdens on the President's time and attention." Id. at 2036 (quoting Cheney v. U.S. Dist. Ct., 542 U.S. 367, 387 (2004)).Even if separation of powers considerations continue to inform analysis of the June 2021 Request, such considerations would be much less pronounced after a President leaves office and returns to life as a private citizen. Cf. A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 246–57 (2000).

True enough. But the purpose of these requests is now to weaken Trump as a 2024 candidate. The idea that the requests are really about promoting the lawmaking process was never plausible. The Biden OLC goes out of its way to "blink reality" and ignore what is really motivating the request. Johnsen effectively says the statements of individual members of the committee are irrelevant, because the Committee's request, as a whole, was facially neutral.

Second, although it is possible that some members of Congress might hope that former President Trump's tax returns are published solely in order to embarrass him or to "expose for the sake of exposure," such individuals' motives would not serve to invalidate the Committee's re-quest. The Committee's June 2021 Request plainly serves legitimate legislative objectives, even if some individual legislators might have other reasons for wanting access to the information. 

This sentence should be quoted in the litigation against voting laws in Texas, Georgia, and elsewhere. Indeed, in a footnote, OLC writes they would not look at a politician's public statements that are in conflict with the formal request!

The 2019 Opinion also noted that Chairman Neal's accompanying "press release" referred only to the President's tax returns, and not to the IRS's administrative files. Id. at *27–28. But the contents of an elected official's press release describing a formal request are not grounds for disregarding the contents of that request itself for purposes of assessing its constitutional sufficiency.  

I lost count of how many judges cited Trump's tweets, and disregarded the actual text of a policy.

In the end, Trump's tax returns will see the light of day. And the content of those returns will not change anyone's minds. But the separation of powers will be weaker for it.