The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
House Committee Can Get Trump Tax Returns
"The 2021 Request seeks information that may inform the United States House of Representatives Committee on Ways and Means as to the efficacy of the Presidential Audit Program, and therefore, was made in furtherance of a subject upon which legislation could be had."
The introduction and conclusion from today's long D.C. Circuit decision in Committee on Ways & Means v. U.S. Dep't of Treasury by Judge David Sentelle, joined by Judge Robert Wilkins and in large part by Judge Karen LeCraft Henderson:
The Chairman of the United States House of Representatives Committee on Ways and Means filed a statutory request for documents from the Department of the Treasury related to then-President Donald J. Trump and related entities. Treasury initially objected to the request, and the Committee filed this lawsuit. After a change of administrations, Treasury acquiesced, stating that it intended to comply with the request. In the meantime, the Trump Parties intervened in the action. The district court ruled in favor of the Committee. Intervenors appeal. For the reasons set forth below, we affirm….
The 2021 Request seeks information that may inform the United States House of Representatives Committee on Ways and Means as to the efficacy of the Presidential Audit Program, and therefore, was made in furtherance of a subject upon which legislation could be had. Further, the Request did not violate separation of powers principles under any of the potentially applicable tests primarily because the burden on the Executive Branch and the Trump Parties is relatively minor. Finally, § 6103(f)(1) is not facially unconstitutional because there are many circumstances under which it can be validly applied, and Treasury's decision to comply with the Request did not violate the Trump Parties' First Amendment rights. We affirm.
As to privacy, the court notes:
There is no constitutional guarantee to the privacy of tax returns. Rather, the privacy of tax returns is a creature of statute, the same statute that authorizes the Chairman to request this information.
And, as to the First Amendment:
Finally, the Trump Parties contend that Treasury's intent to comply with the Chairman's Request violates their First Amendment rights because Treasury is politically motivated . Those being investigated by Congress do not lose the protections of the First Amendment. To state a claim for First Amendment retaliation, the Trump Parties must allege that they engaged in protected conduct, that the government took retaliatory action capable of deterring another from the same protected activity, and that there is a causal link between the two. The improper motive must be a but-for cause of the government action, "meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive."
The Trump Parties have failed to state a claim for the reason that they cannot show that Treasury's decision to comply with the 2021 Request would not have happened absent a retaliatory motive. The language of § 6103(f)(1) is mandatory. The statute provides that "the Secretary shall furnish" the requested information to the Committee upon written request. When the Committee makes a request that is within its authority to make, i.e., within Congress's investigative power, the Secretary does not have a choice as to whether to provide the information. Where, as here, the Executive Branch comes to the conclusion that a § 6103(f)(1) request is valid, it has no choice but to comply with the request. Any motive, retaliatory or otherwise, becomes irrelevant. Therefore, the Trump Parties' First Amendment claim, like their other claims, fails.
Judge Henderson had a different approach to the separation-of-powers question, though she agreed there was no separation of powers violation.
