A Tale Of Two OLCs

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

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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.

NEXT: Today in Supreme Court History: July 31, 2018

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  1. As tax returns are leaked more and more often, it will be easier and easier to argue against tax laws that require that information be disclosed.

    We saw this with Americans for Prosperity Foundation v. Bonta. California wanted to claim that the information was kept confidential, but it clearly wasn’t, so California eventually lost.

    1. All the financial records of Pelosi and the Democrat hierarchy should be published to the internet. I was going to call Pelosi a $10 whore buther net worth went from $40 million to $80 million when elected Speaker. She is a $40 million Chinese Commie Party hooer. Not bad for someone her age.

      1. But they won’t be because it’s against the law and non-leftists try to obey laws.

        1. Also the NSA — the same NSA that spied on Tucker — would tell the DoJ who leaked it.

          When Trump’s taxes are illegally leaked, Federal law enforcement will help make sure no one gets in trouble for it.

          1. That is lawfare for partisan purposes. It is in bad faith. The court should award all legal costs from the personal assets of the plaintiffs.

    2. There wasn’t a showing that they were not keeping the data confidential if I recall, but the court said if you need the data for what you say you need it for, policing fraud, then subpoena the data when you need it.

      1. Actually, there was a showing that they failed to keep the data confidential. What they didn’t try to show was whether the failure was intentional or merely the result of incompetence.

  2. The people in the Biden administration behind this request are the same liars who spent Trump’s entire term in office pursuing accusations against him and his allies that they knew were false, from “muh Russian collusion” to the “Jan 6 insurrection.” No court has any business giving them the benefit of the doubt on ANY topic.

    1. Yeah, but this isn’t a court, it’s the Biden Adminstration, and the Manhattan DA Cyrus Vance has had Trump’s tax returns since February, and already determined there is nothing criminal in them.

      But it’s going to be the new normal. I can see as soon as Congress changes hands in January 2023 a house committee asking for Hunter Biden’s tax returns. And I would not be surprised if it’s found that Hunter violated tax laws funnelling his receipts to Joe.

      1. the Manhattan DA Cyrus Vance has had Trump’s tax returns since February, and already determined there is nothing criminal in them.

        When was this announced?

        And bear in mind that Vance can’t prosecute Trump for a federal offense, and that there are plenty of non-criminal ways to violate the tax laws, state and federal.

        Here’s what we know, on the record, about Trump:

        1. He’s a crook.
        2. He lies a lot, really a lot.

        Is it really inconceivable to you that he cheated on his taxes?

        1. Is it inconceivable? Certainly not. Is it at all likely? No, not really.

          Because, you know who’s had Trump’s tax returns all along? The IRS. And they’ve been auditing him all along.

          1. Brett,

            I’ve answered this dozens of times. You are either unable or unwilling to understand.

            An ordinary tax audit is a far cry from a criminal tax investigation. It is not nearly as thorough. Besides, with the IRS seriously understaffed – thanks, GOP – it’s hard for them to do even a very thorough audit of returns as complex, and no doubt deliberately misleading, as Trump’s.

            1. Bernard,
              The IRS also has programs in place that will automatically red flag questionable info on returns. A serious red flag, or enough less serious red flags would trigger an audit. Given the IRS’s willingness to pursue political goals – ask Lois Lerner – do you seriously believe the IRS would not have launched a criminal audit if they had any reasonable hope of succeeding?

              It’s hilarious they way all you anti -Trumpers rant and rave like he prepares his taxes himself. That’s why the IRS hasn’t done anything. Trump has teams of accountants and tax lawyers that would take the IRS apart. Even petty, partisan hack bureaucrats don’t like playing the fool publicly.

              1. “We’ve played the refs relentlessly and the fact they didn’t make the call against us is proof nothing wrong was done!”

              2. A serious red flag, or enough less serious red flags would trigger an audit.

                Please read my comment about audits.

                Oh, and drop the Lois Lerner BS.

                1. Oh, and drop the Lois Lerner BS.
                  By all means take proof of corruption off the debate stage.
                  Arguing facts is bad.
                  The fact is, Lawyers and CPA’s do the accounting, and risk their personal livelyhood and freedom by breaking the law. So lets not consider the facts, when pushing a pure political witch hunt.

                2. Please learn how taxes are done for corporations and wealthy people.

                  1. I know how they’re done, thanks.

            2. And as we’ve pointed out to you, billionaires do not get ordinary tax audits.

              1. “And as we’ve pointed out to you, billionaires do not get ordinary tax audits.”
                Ah yes, the evil billionaires argument. Well that certainly gets your Marxist theory card punched for the day. And it’s way easier than having an actual position backed with facts and logic.

                Brings up the interesting question of Trump’s actual wealth. Leftists spent his entire presidency claiming he did not have as much money as he claimed. You seem to take his word for it. Which is strange as you also accuse him of being a serial liar.

                Trump has had the same firms doing his personal and business taxes for many years. Are you suggesting those firms are complicit or incompetent? Which taxes are you saying he cheated on? Business or personal? Both?

                1. Your comment makes no sense.

                  Who are you replying to?

              2. Yeah. They get away with a lot of crap.

          1. And Politico Jun 28th:

            Trump lawyer: Manhattan DA won’t charge former president.

            There were minor charges against the Trump Organization, but nothing personally against Trump himself.

      2. ” the Manhattan DA Cyrus Vance has had Trump’s tax returns since February, and already determined there is nothing criminal in them ”

        Lying, delusional bigots are among my favorite culture war casualties.

        1. When committed by political adversaries, sharp business practices are criminalized. The Democrat is jealous because of innate inability to engage in sharp business practices.

          1. “sharp business practices”

            Love how the same authoritarian nut who regularly spouts off about executions, deportations, etc., then uses the euphemism ‘sharp’ here.

    2. Those silly Biden loves going after Trump for things that actually happened.

      1. Tell us Molly. What actually happened? What specific tax laws did Trump break?

        You must know since you said it “actually happened”.

        Or are you, as usual, simply talking out your ass?

        1. Read the New York Times account. Get an education.

  3. Guardrails notwithstanding, Blackman again takes the Trumpist view.

    1. Ignoring arguments, bernard11 bases his hate on whether or not it hurts Trump.

      1. I got all the arguments I need, but I’m not interested in wasting on them on an idiot like you.

    2. Publishing this level of analysis indicates that Prof. Blackman truly loves working at South Texas and has no interest in moving to a top 10, top 20, top 50, top 100, or top 150 law school.

      1. Josh is very intelligent, knowledgeable, productive. The are the diametric opposites of Artie.

        1. “very intelligent, knowledgeable, productive. The are the”

          Lol, never change Behar.

  4. Trump’s tax returns have long since leaked, the only reason everyone hasn’t seen them, is that there wasn’t anything incriminating in them. So it better served Democrats’ interests to keep demanding to see them, and preserve the illusion that there might be something embarrassing in them.

    1. That’s sort of stupid.

      First, they haven’t been leaked, although parts of his tax info has been.

      Second, why not just release them, and foil the Democrats’ evil plot. If what you say is true, that all the information is out there, and the Democrats’ demands are just for show, then it would make perfect sense.

      But of course he won’t, and will probably fight this latest move as well.

      1. Why shouldn’t he fight it? Here, let me help you understand: post a link to where you have uploaded your tax returns.

        1. Oh, he can fight it if he wants. In fact, I wouldn’t even mind that he didn’t release them during the 2016 campaign, had he been honest all along that he wouldn’t do so. Instead he repeatedly lied about his intentions and offered BS excuses, because he’s Trump, and his cultists swallowed them.

          The point I was making, which you missed, is that if the Democrats are actually playing the devilish game Brett accuses them of – pretending to demand the returns they already have – then it would be a good idea fro Trump to just release them.

      2. “First, they haven’t been leaked, although parts of his tax info has been.”

        They haven’t been published. Given that parts of his tax info have been, I think we can reasonably infer that the whole thing has indeed leaked. Where else did they get the info to publish it, then?

        1. Why wouldn’t they publish the entire returns?

          1. Bernard, I agree with you in part. I mean, Trump isn’t a person of character. Who knows what he did or didn’t do?

            But on the other hand, why is Congress still wasting time on this. Newsflash – TRUMP ISN’T PRESIDENT ANY MORE. Been gone for six months.

            Wouldn’t it be better if they were doing, you know, their jobs instead of continuing an investigation that will end up having no impact on anything ever?

            1. BtL,

              I agree with you in part.

              Wouldn’t it be better if they were doing, you know, their jobs instead of continuing an investigation that will end up having no impact on anything ever?

              But. What exactly do you think they – specifically the House – should be doing?

              Are we sure it will have no impact? What if, for example, it is discovered that Trump reduced his taxes by taking advantage of outrageous but legal provisions of the tax code? What if it is discovered that the audit procedures are inadequate to uncover complex tax evasion schemes? Might not either of these stimulate legislative action?

              Yes. No doubt the Democrats are happy to have the returns, and will, one way or another, try to embarrass Trump. Whether they will leak outright or not remains to be seen.

              But,

              Investigations, whether by standing or special committees, are an established part of representative government. Legislative committees have been charged with losing sight of their duty of disinterestedness. In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses. The courts should not go beyond the narrow confines of determining that a committee’s inquiry may fairly be deemed within its province. To find that a committee’s investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive.

              1. As to their jobs, how long has it been since Congress has passed an actual budget with detailed spending provisions and deficit estimates and all that? Remember the days of “dead on arrival”? It’s been at least a decade, right? Longer?

                Flinging shit at each other over stuff like this and masks and so on must be more fun than work, although I’d find it tiresome.

                But a business run financially like this would be gone in a couple of years. Hell, the states and counties and cities couldn’t get away with this.

                1. Are you arguing that Congress isn’t producing budgets because they don’t have time because they’re ‘wasting’ it on this kind of thing? I doubt it’s about time, it’s a highly polarized and fairly evenly matched political problem.

              2. Also Bernard, I think we already know a lot about the stuff you’re bringing up as to the tax code because somebody (presumably) with the IRS is breaking the law and giving billionaire’s tax returns to Politico, who is publishing their numbers.

                So far Elizabeth Warren is riled up about it (note that I avoided the “warpath” joke) but everywhere else it’s a collective yawn.

                1. everywhere else it’s a collective yawn.

                  It may be a collective yawn. It shouldn’t be.

                2. I think lots of people are mad that billionaires pay less tax than they do, they just think our system is so corrupt not much can be done about it. Maybe the fact that our politicos shield things like their tax records (and that goes for both sides, virtually no Congresscritters put their tax records public) feeds that cynicism?

                  1. I’m pretty sure there isn’t a billionaire in America who pays less taxes than I do. Possible a lower percentage, in some cases…

                    1. I’m pretty sure there isn’t a billionaire in America who pays less taxes than I do. Possible a lower percentage, in some cases…

                      Are you?

                      In addition to Buffett, the ProPublica article found that billionaires including Jeff Bezos, Elon Musk and Michael Bloomberg had also paid miniscule tax rates between 2014 and 2018. Bezos reportedly paid no federal income taxes at all in 2007 and 2011, while Musk paid none in 2018.

                      And you’re certainly aware that Trump paid virtually zero taxes some years. Of course he might not be a billionaire.

              3. if, for example, it is discovered that Trump reduced his taxes by taking advantage of outrageous but legal provisions of the tax code? What if it is discovered that the audit procedures are inadequate to uncover complex tax evasion schemes? Might not either of these stimulate legislative action?

                What if can be accomplished by calling for tax returns of 100’s of other persons/entities.
                You want to claim at the same time, President Trump is an idiot incapable of the simplest of tasks, while at the exact same time is the one person in the whole of the United States that has figured out how violated Tax law in such a way to avoid exposure by yearly in dept audits of the IRS>

      3. And what will the woke mob do when Trump’s returns are released and they learn who all is doing business with him? Just ask Nicolas Sandmann how far the mob will go.

        1. They will go so far as… to mock him online?

          1. DN,
            Willful ignorance or partisan frothing? Are you truly unaware of the mob trying to get the school closed? Of contacting the employers of the boys in the video and demanding the firing of their parents? Of the threats and harassment the boys were subjected to?

            Or are you desperately hoping everyone else is as painfully uninformed as you appear to be?

            1. You said we should ask Sandmann “how far the mob will go,” and yet exactly nothing happened to Sandmann, beyond a bunch of online criticism that lasted a few days. Am I “unaware” of stuff you made up? How would a mob “get the school closed”? And of course the “threats and harassment” being mockery online.

              1. It was a virtual lynching, doncha know?

              2. Soooo. Since nothing actually happened to any member of Congress on Jan 6 – will you be calling for the dismissal of all charges for those arrested?

              3. “And of course the “threats and harassment” being mockery online.”

                Death threats against him personally, his family and friends is just mockery? That level of cluelessness can only be deeply – pathetically – intentional. All the more so as this very blog covered the cases filed against media outlets that detailed exactly how far the mob would go.

      4. That’s sort of stupid.

        That’s our Brett. Brett is a conspiracy theorist. Normal people apply Occam’s Razor. But the hallmark of a conspiracy theorist is the need to believe he is more sophisticated than everyone else, so he is able to see through the straightforward explanation to the true story.

        A normal person sees Democrats demanding tax returns and concludes that Democrats want to see the tax returns. A conspiracy theorist says, “I’m more insightful than all those people. It can’t be that simple. If they’re demanding it, it must be for some secret reason, like, um, to make people think there’s something in there.”

        Just like a normal person sees all intelligent lawyers mocking Donald Trump’s lawsuit and says, “This lawsuit must be really frivolous.” A conspiracy theorist says, “I’m more insightful than all those people. It can’t be that simple. If people are mocking it, they must be really scared of it and are just tricking people into thinking otherwise.”

        1. Take the Reason version of an upvote.

        2. That’s our Brett. Brett is a conspiracy theorist. Normal people apply Occam’s Razor.
          That’s rich considering the Dems have spent 6 years creating massive conspiracies surrounding President Trump. And not a single one supported by even the slimiest of facts.

        3. If the contents of the returns hadn’t leaked, I might think they still wanted the returns. But after that leak, I have to assume that they already have the returns, and this is either theatrics, or an effort to be able to deny that they obtained them illegally when they make use of them.

          1. If the contents of the returns hadn’t leaked, I might think they still wanted the returns. But after that leak, I have to assume that they already have the returns,

            You don’t “have to assume” that; you choose to assume that. As others above pointed out, if the tax returns were already out to Trump’s enemies and don’t show any wrongdoing, then why wouldn’t Trump have just done what every other president for decades has done and release them? That would have allowed Trump to shut up the people who say, “Why won’t he release them?” and made Trump’s enemies look foolish. Again, this is something every other president/presidential candidate for decades has done, not an extraordinary demand made on Trump alone.

            1. “why wouldn’t Trump just … release them?”

              Because they contain the holy grail of secret Russian agent kompromat evidence that years of spying and investigation by the full force of the U.S. government couldn’t uncover. Obviously.

  5. I’ll give the Trump Administration this one. If anyone was an expert on asserted interests being pretextual, it was them.

  6. That is the beauty of “Trump law” is that it only applies to Trump and his political allies.

    Of course there is now a presumption of regularity because Trump isn’t involved. This is just business as usual.

    1. And the beauty of Dem Law is the laws they harass others with don’t apply to them.

      1. yawn

  7. Gosh. It’s almost as if politics might be involved in the decision making of both DOJs. Rather than principle. If someone in DC was forced to apply a consistent principle to something they’d spontaneously combust.

    1. It’s almost as if politics might be involved in the decision making of both DOJs.

      Say it ain’t so.

  8. Comity for me but not for thee.

  9. Although Blackman clearly cannot comprehend such simple language, even Trumpers should be able to understand two simple words:

    Shall furnish.

    End of argument.

    1. You have the memory of a gold fish.
      Lots of President Trumps actions were enjoined by judges that said in their written opinions. that President Trumps actions would be fine if taken by any other President.

      1. Unfortunately, remembering things that didn’t happen is an affliction only of people, not goldfish. There are no such written opinions.

        1. Every time they ruled Trump couldn’t do one of his immigration rules because of ‘animus’, they were ruling that a different President could have issued the same rule.

          1. No. They’re arguing that a different set of facts — not a different litigant — would lead to a different result.

  10. Prof. Blackman fails to understand that one of the biggest problem of the former administration was it’s lack of message discipline. To Prof. Blackman way of thinking what is said outside the courtroom is not relevant, but it is and that is why so many courts ruled against Trump. You may believe that Democrats plan to leak Trump’s taxes, but they committee has provided a reasonable explanation and has the not deviated from that message. There is therefore no reason the think the plan is to leak the information other than a distrust of the Democratic motives. Not something that holds up in court.

    There is a tried and true method of avoiding embarrassing leaks. Get the information out yourself and put your own spin on it. The former President would have done better had he used this approach.

  11. I’d worry about the implications going forward. Their are many OLC opinions of greater importance that are now ‘fair game’ for reversal. That will hurt the country, as policy whipsaws back and forth.

    1. You seem to expect Republicans to be in an electoral position to arrange “back and forth” control of the federal government.

      Good luck with that in an improving America.

      Democrats should not become overconfident in this regard, though. If conservatives perfect a machine that mass-produces poorly educated, superstitious, roundly bigoted, selfish, easily frightened, rural, southern, older, economically inadequate, disaffected white males — and Republican lawyers such as the Volokh Conspirators figure a way to register the newly minted goobers to vote — Democrats could have a real problem on their hands.

      Good luck with that, too.

  12. Will it just be the tax returns or will it also be Trump’s books and records. I expect the Dems to make the returns (or selected portions of the returns) public as soon as the Dems on the panel find portions they can portray as embarrassing. Considering how they over promised regarding the materials from the first impeachment, I expect to be underwhelmed.

    1. I don’t really think embarrassment is something the former President worries about. His support and nonsupport is baked in at this point. What is more likely he worries about the effect on those with whom he does business.

      1. This has nothing to do with how the President ‘feels’.
        All of the Trump targeting is on mission to separate President Trump from his voters. The narrative is always the same.
        Stupid rubes are the only Trump voters. (yet even in a loss, the most votes for any Republican Presidential)

        1. As I noted I don’t think there is much that will separate Trump from his voters. That may be some people’s goal but they are foolish.

  13. You say:

    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.

    I think you are wrong. The requests have as much legisilative legitimacy as the Benghazi requests and the 501(c)(4) scandal. Indeed more legitimacy, because if Trump can corrupt the OLC process, he can corrupt the IRS process as well. A hard legislative look needs to be taken at the mandatory audits to see if the IRS really followed the leads and the money and collected the real tax Trump owes. Nixon had the same problem; he was investigated by the Joint Committee which did not cut him any slack; Congress needs to assure itself that Trump did not corrupt the audit process and to establish new protections if he did.

    Of course, if he filed honest returns and had disclosed them, there would be no problem. I suspect he did not do the former and know he did not do the latter.

    1. Your logic is just like crossfire hurricane.
      It something President Trump could have done, with the glaring fact that no evidence exists to launch such an investigation

      1. The fact is that there is more than enough to launch such an inquiry. They former President chose to violate a number of norms coming into office. While none of those things are directly criminal they do show a pattern that would lead to a reasonable cause for inquiry. The fact is, as noted by Tax Litigator, that people have been investigated for far less.

  14. Quite amusing how Democrats have been munching on this nothingburger for years on end. Virtually the entire left-leaning electorate was subsumed with incredibly delusional conspiracy theories. It was like secret Muslim agent Obama times one thousand. Sad to see so many profoundly broken brains.

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