COMMITTEE ON WAYS AND MEANS, UNITED STATES HOUSE OF REPRESENTATIVES v. UNITED STATES DEPARTMENT OF THE TREASURY et al

Filing 1

COMPLAINT against CHARLES P. RETTIG, INTERNAL REVENUE SERVICE, STEVEN T. MNUCHIN, UNITED STATES DEPARTMENT OF THE TREASURY (Fee Status:Filing Fee Waived) filed by COMMITTEE ON WAYS AND MEANS, UNITED STATES HOUSE OF REPRESENTATIVES. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J, #11 Exhibit K, #12 Exhibit L, #13 Exhibit M, #14 Exhibit N, #15 Exhibit O, #16 Exhibit P, #17 Civil Cover Sheet, #18 Summons, #19 Summons, #20 Summons, #21 Summons, #22 Summons, #23 Summons)(Letter, Douglas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COMMITTEE ON WAYS AND MEANS,
UNITED STATES HOUSE OF REPRESENTATIVES,
1102 Longworth House Office Building
Washington, D.C. 20515,
Plaintiff,
Case No. 1:19-cv-1974

v.
UNITED STATES DEPARTMENT OF
THE TREASURY,
1500 Pennsylvania Avenue N.W.
Washington, D.C. 20220, et al.,
Defendants.

Exhibit C

3033 Wilson Boulevard
Suite 700
Arlington, VA 22201
703.243.9423
www.consovoymccarthy.com

April 5, 2019
Brent J. McIntosh
General Counsel
U.S. Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, D.C. 20220
Dear Mr. McIntosh:
Two days ago, Chairman Richard Neal of the House Ways and Means Committee sent
Commissioner Charles Rettig of the Internal Revenue Service a letter, which asked for
confidential tax information about President Donald J. Trump, The Donald J. Trump
Revocable Trust, and seven related businesses. I represent President Trump and these entities
in connection with Chairman Neal’s request. Sheri Dillon and Will Nelson represent President
Trump and these entities in connection with the underlying IRS examinations referenced
below. Secretary Mnuchin has stated that he will consult with your office about any
congressional request for the President’s private tax information. I write to explain why
Chairman Neal cannot legally request—and the IRS cannot legally divulge—this information.
The Tax Code zealously guards taxpayer privacy. As Justice Ginsburg explained when
she served on the D.C. Circuit, taxpayer privacy is “fundamental to a tax system that relies on
self-reporting,” since it “guarantees that the sometimes sensitive or otherwise personal
information in a return will be guarded” from individuals outside the IRS. Nat’l Treasury
Employees Union v. FLRA, 791 F.2d 183, 184 (D.C. Cir. 1986). The “general rule,” accordingly,
is that tax returns and return information “are confidential and not to be disclosed.” Church of
Scientology of Calif. v. IRS, 484 U.S. 9, 15 (1987). Section 6103 of the Tax Code declares that tax
returns, audits, administrative files, and other related information “shall be confidential” and
prohibits federal officials from disclosing them. Though section 6103 contains some
exceptions, they are “limited” and “narrowly drawn.” EPIC v. IRS, 910 F.3d 1232, 1235 (D.C.
Cir. 2018). Federal officials who ignore these legal limitations are guilty of a crime and liable
for damages. 18 U.S.C. §1905; 26 U.S.C. §§7213(a)(1), 7431(a).
One exception to the general rule prohibiting disclosure of tax returns and return
information is the provision that Chairman Neal invokes, section 6103(f). While that section
allows Ways and Means to obtain tax returns and return information under certain conditions,
the committee’s authority is subject to important constraints. These constraints “extend to the
ordinary taxpayer and the President alike.” EPIC, 910 F.3d at 1235.
For starters, requests for tax returns and return information must have a legitimate
legislative purpose. All legislative investigations “must be related to, and in furtherance of, a
legitimate task of the Congress.” Watkins v. United States, 354 U.S. 178, 187 (1957). And that
task must be squarely within the relevant committee’s jurisdiction. United States v. Patterson, 206
F.2d 433, 434 (D.C. Cir. 1953). The Constitution does not grant Congress a standalone

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“investigation” power; Congress can conduct investigations only to further some other
legislative power enumerated in the Constitution. Kilbourn v. Thompson, 103 U.S. 168, 190
(1880). As the Supreme Court told the House Un-American Activities Committee decades
ago, “there is no congressional power to expose for the sake of exposure”—especially not the
“private affairs of individuals.” Watkins, 354 U.S. at 200, 187. And Congress cannot use
investigations to exercise “the functions of the executive” or to act like a “law enforcement or
trial agency.” Id. at 187.
Even when Ways and Means can identify some legitimate committee purpose, it
cannot request tax returns and return information to punish taxpayers for their speech or
politics. The “First Amendment freedoms” of “speech,” “political belief,” and “association”
apply to congressional investigations. Id. at 188. And the First Amendment prohibits the
government—including Congress—from harassing political opponents and retaliating against
disfavored speech. Rutan v. Republican Party of Ill., 497 U.S. 62, 75 (1990); Lozman v. City of Riviera
Beach, 138 S.Ct. 1945, 1949 (2018). The government commits illegal retaliation when the
target’s speech or politics motivated its actions “at least in part.” Cruise-Gulyas v. Minard, 918
F.3d 494, 497 (6th Cir. 2019). That is because, even when the government could legitimately
act “for any number of reasons, there are some reasons upon which the government may not
rely”—including “constitutionally protected speech or associations.” Perry v. Sindermann, 408
U.S. 593, 597 (1972).
Chairman Neal’s request flouts these fundamental constitutional constraints. Ways and
Means has no legitimate committee purpose for requesting the President’s tax returns or return
information. While the committee has jurisdiction over taxes, it has no power to conduct its
own examination of individual taxpayers. Enforcement of our nation’s tax laws is entrusted to
the IRS—an arm of the Executive Branch. Indeed, the IRS is already conducting its own
examination. Congressional inquiries made “while the decisionmaking process is ongoing”
impose the “greatest” intrusion on “the Executive Branch’s function of executing the law.”
5 Op. O.L.C. 27, 31 (1981).
Even if Ways and Means had a legitimate committee purpose for requesting the
President’s tax returns and return information, that purpose is not driving Chairman Neal’s
request. His request is a transparent effort by one political party to harass an official from the
other party because they dislike his politics and speech. Chairman Neal wants the President’s
tax returns and return information because his party recently gained control of the House, the
President is their political opponent, and they want to use the information to damage him
politically. It is no secret that a vocal wing of the Chairman’s party has been clamoring for the
President’s tax returns since before the 2016 election. And it is no coincidence that Chairman
Neal made his request just days after prominent Democratic constituencies began publicly
criticizing the House for its failure to go after the President.
While Chairman Neal now claims that he needs the President’s tax returns and return
information to assess how “the IRS audits and enforces the Federal tax laws against a
President,” that explanation is obviously pretextual. If Chairman Neal genuinely wants to
review how the IRS audits Presidents, why is he seeking tax returns and return information
covering the four years before President Trump took office? Why is he not requesting
information about the audits of previous Presidents? And why can he not simply ask the IRS
to explain its policy? The answer, of course, is that Chairman Neal’s request is not about

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examining IRS policy. It is about scoring political points against President Trump. As
Chairman Neal explained to the partisan groups demanding the President’s tax returns: He
had to be “meticulous about [his] choice of words” because his request will “become the basis
of a long and arduous court case.” He stressed that Democrats had to “resist the emotion of
the moment,” not “step on [their] tongue[s],” and “approach this gingerly and make sure the
rhetoric that is used does not become a footnote to the court case.” Rep. Neal, In the News
(Jan. 23, 2019), bit.ly/2TPe1k0; Rep. Neal, In the News (Jan. 24, 2019), bit.ly/2UfiYaT. In short,
Chairman Neal promised to draft a request that concealed his party’s motive: unconstitutional
retaliation against the President.
If the IRS acquiesces to Chairman Neal’s request, it would set a dangerous precedent.
As Secretary Mnuchin recently told Congress, he is “not aware that there has ever been a
request for an elected official’s tax returns.” For good reason. It would be a gross abuse of
power for the majority party to use tax returns as a weapon to attack, harass, and intimidate
their political opponents. Once this Pandora’s box is opened, the ensuing tit-for-tat will do
lasting damage to our nation. Can the Chairman request the returns of his primary opponents?
His general-election opponents? Judges who are hearing his case? The potential abuses would
not be limited to Congress, as the President has even greater authority than Congress to obtain
individuals’ tax returns. 26 U.S.C. §6103(g). Congressional Democrats would surely balk if the
shoe was on the other foot and the President was requesting their tax returns. After all, nearly
90% of them have insisted on keeping their tax returns private, including Speaker Pelosi,
Senator Schumer, Representative Nadler, Representative Schiff, and Representative Neal himself. Members of Congress: Where Are Your Tax Returns?, Roll Call (June 26, 2017), bit.ly/
2VmhnN4.
Chairman Neal’s request is especially inappropriate because, as noted above, he is
asking for tax returns, administrative files, and other information regarding an ongoing IRS
examination. IRS examinations are trial-like adjudications, and basic principles of due process
require adjudications to be insulated from congressional interference. When a congressional
investigation focuses on a “pending” adjudication, it violates “the right of private litigants to
a fair trial and, equally important, with their right to the appearance of impartiality”—the “sine
qua non of American judicial justice.” Pillsbury Co. v. FTC, 354 F.2d 952, 964 (5th Cir. 1966).
Even the most scrupulous IRS officials could not help but be influenced by the fact that
Congressional partisans are scrutinizing their work in real time. Id.
Knowing this, Chairman Neal decided to make his request anyway. The IRS’s ability
to do its job fairly and impartially has already been undermined. But complying with the
request, and turning over the requested files, would make matters far worse. The executive
branch has long refused to “provide committees of Congress with access to, or copies of, open
law enforcement files.” 10 Op. O.L.C. 68, 76 (1986). Making Congress “a partner in the
investigation,” every administration since George Washington has recognized, would create
“a substantial danger that congressional pressures will influence the course of the
investigation.” 8 Op. O.L.C. 252, 263 (1984).
Finally, given the unprecedented nature of Chairman Neal’s request, the IRS should
refrain from divulging the requested information until it receives a formal legal opinion from
the Justice Department’s Office of Legal Counsel. Caution and deliberation are essential to
ensure that the Treasury Department does not erode the constitutional separation of powers

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or the Tax Code’s “core purpose of protecting taxpayer privacy,” Tax Analysts v. IRS, 117 F.3d
607, 615 (D.C. Cir. 1997)—protections that safeguard not just the President, but all
Americans.
We would welcome an opportunity to meet and discuss these issues. We look forward
to your response.
Sincerely,

William S. Consovoy
cc:

Steven T. Mnuchin
Charles P. Rettig
Sheri A. Dillon
William F. Nelson