Committee on Ways and Means, United States House of Representatives v. TREA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 24, 2022 Decided August 9, 2022

No. 21-5289

COMMITTEE ON WAYS AND MEANS, UNITED STATES HOUSE OF
REPRESENTATIVES,
APPELLEE

v.

UNITED STATES DEPARTMENT OF THE TREASURY, ET AL.,
APPELLEES

DONALD J. TRUMP, ET AL.,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01974)

Cameron T. Norris argued the cause for appellants. With
him on the briefs was William S. Consovoy.

Douglas N. Letter, General Counsel, U.S. House of
Representatives, argued the cause for appellee Committee on
Ways and Means, United States House of Representatives.
 2
With him on the brief were Todd B. Tatelman, Principal Deputy
General Counsel, Stacie M. Fahsel, Associate General Counsel,
Eric R. Columbus and Michelle S. Kallen, Special Litigation
Counsel, Seth P. Waxman, Kelly P. Dunbar, David M. Lehn,
Andres C. Salinas, Susan M. Pelletier, and Katherine V. Kelsh.

Gerard Sinzdak, Attorney, U.S. Department of Justice,
argued the cause for Executive Branch appellees. With him on
the brief were Sarah E. Harrington, Deputy Assistant Attorney
General, and Michael S. Raab, Attorney. Mark R. Freeman,
Attorney, entered an appearance.

Elizabeth B. Wydra and Brianne J. Gorod were on the
brief for amicus curiae Constitutional Accountability Center in
support of appellees.

Before: HENDERSON and WILKINS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

Opinion concurring in part and concurring in the judgment
filed by Circuit Judge HENDERSON.

SENTELLE, Senior Circuit Judge: 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
 3
Committee. Intervenors appeal. For the reasons set forth below,
we affirm.
I. Background

As a general rule, Title 26, Section 6103 of the United
States Code makes tax returns and return information
confidential unless their release is authorized by an exception
enumerated in that same section. 26 U.S.C. § 6103(a). Section
6103 includes a number of exceptions to the general rule of
confidentiality but only one is at issue here. Section 6103(f)(1)
provides that

[u]pon written request from the
chairman of the Committee on Ways
and Means of the House of
Representatives . . . the Secretary shall
furnish such committee with any return
or return information specified in such
request . . . .

26 U.S.C. § 6103(f)(1). At bottom, this case simmers down to
the constitutionality and application of § 6103(f)(1).

Operating separately from § 6103(f)(1), IRS regulations
give the President’s tax returns special consideration. While
IRS audits are often random, the IRS has required the audit of
the sitting President’s tax returns since 1977. This Presidential
Audit Program is a creature of IRS regulations and is not
required or governed by statute. See Internal Rev. Man.
§ 3.28.3.5.3.

On April 3, 2019, Representative Richard Neal, Chairman
of the Committee on Ways and Means (“the Chairman”)
invoked § 6103(f)(1) in a writing to the Commissioner of
Internal Revenue (“the 2019 Request”). In the Request, the
 4
Chairman requested the federal income tax returns of then-
President Donald J. Trump as well as Donald J. Trump
Revocable Trust, DJT Holdings LLC, DJT Holdings Managing
Member LLC, DTTM Operations LLC, DTTM Operations
Managing Member Corp., LFB Acquisition Member Corp.,
LFB Acquisition LLC, and Lamington Farm Club, LLC doing
business as Trump National Golf Club—Bedminster
(collectively “Appellants” or “the Trump Parties”). In his letter,
Chairman Neal stated that the Committee was “considering
legislative proposals and conducting oversight related to our
Federal tax laws, including, but not limited to, the extent to
which the IRS audits and enforces the Federal tax laws against
a President.” JA 46.

On May 6, 2019, the Department of the Treasury
responded that it did not intend to comply with the 2019
Request because it was not supported by a legitimate legislative
purpose. This position was supported by an Office of Legal
Counsel opinion issued on June 13, 2019, which concluded that
the Chairman’s stated reasons for requesting the tax
information were pretextual.

In receipt of Treasury’s denial, the Committee filed suit
against the Internal Revenue Service and its Commissioner and
the Department of the Treasury and its Secretary (collectively
“Treasury”) to force compliance with the 2019 Request. The
Trump Parties intervened in the case soon after.

While the case was pending in the district court, Joseph R.
Biden was elected as President of the United States. He was
inaugurated on January 20, 2021.

In June 2021, the Chairman again wrote to the Secretary
of the Treasury and Commissioner of the Internal Revenue
Service. Invoking § 6103(f)(1), the Chairman requested the
 5
same information regarding the Trump Parties (“the 2021
Request”). However, in this Request, the Chairman provided
more detail as to why the Committee wanted this information.
Generally, Chairman Neal stated that the Committee continued
“to consider and prioritize legislation on equitable tax
administration, including legislation on the President’s tax
compliance, and public accountability” and legislation related
to the IRS’s mandatory audit program of the sitting President’s
returns.

Upon receipt of the 2021 Request, Treasury again
consulted the Office of Legal Counsel. In July 2021, the Office
released a second opinion, this time concluding that the 2021
Request was valid, and therefore that Treasury had no choice
but to comply with it per the mandatory language of
§ 6103(f)(1).

After the second Office of Legal Counsel opinion was
issued, Treasury informed the district court and the Trump
Parties that it intended to comply with the 2021 Request and
provide the Committee with the requested materials. The
Committee then voluntarily dismissed the Complaint it had
filed against Treasury. Upon learning that Treasury intended to
comply with the 2021 Request, the Trump Parties, still
intervenors at that time, filed a crossclaim against the
Department of the Treasury and its Secretary as well as the
Internal Revenue Service and its Commissioner. In addition,
the Trump Parties filed a counterclaim against the Committee.
These claims allege that the 2019 and 2021 Requests were
unlawful and therefore Treasury should not comply with them.

Against both the Committee and Treasury, the Trump
Parties asserted that the Request lacks a legitimate legislative
purpose and violates the separation of powers. Against
Treasury, the Trump Parties alleged that § 6103(f)(1) is facially
 6
unconstitutional and that compliance with the Request would
be a violation of the First Amendment.

Across eight claims, the Trump Parties alleged that (1) the
Request lacks a valid legislative purpose, (2) the Request
violates the separation of powers, (3) Section 6103(f)(1) is
facially unconstitutional, (4) the Treasury’s change of position
was motivated by retaliation and therefore violates the First
Amendment, and (5) the Request violated the Trump Parties’
Due Process rights. Both Treasury and the Committee filed
motions to dismiss the cross and counterclaims for failure to
state a claim.

In a thorough and well-reasoned memorandum opinion,
the district court granted the motions to dismiss. Committee on
Ways and Means v. U.S. Dep’t of the Treasury, --- F. Supp. 3d.
---, 2021 WL 5906031 (D.D.C. Dec. 14, 2021). First, the
district court held that the 2021 Request was supported by the
valid legislative purpose of the Committee’s study of the
Presidential Audit Program. Id. at *7. Per the district court,
Congress could seek these records to inform legislation
regulating “how many staff the IRS may assign to the audit of
a sitting President” or legislation to ensure funding to the
Presidential Audit Program. Id. at *7.

The district court then, after debating the pros and cons of
various tests, applied Nixon v. Administrator of General
Services (“Nixon v. GSA”) and determined that the Chairman’s
Request did not violate the separation of powers. Id. at *18,
*21.

The district court went on to examine whether § 6103(f)(1)
is facially unconstitutional by asking if the Trump Parties had
shown that there was no set of circumstances under which the
law would be valid. It determined that the Trump Parties had
 7
failed to do so. Id. at *20. It next found that Treasury’s intent
to comply with the 2021 Request is not out of retaliation
against the Trump Parties, and therefore is not a violation of
the First Amendment, because Treasury is required by statute
to comply with a valid request. Id. at *21. Finally, the district
court held that there was no violation of the Trump Parties’ Due
Process Rights. Id. at *22.

The Trump Parties timely appealed the district court’s
granting of the motions to dismiss.

II. Analysis

There are four issues before us on appeal: (1) Whether the
Chairman’s Request is supported by a legitimate legislative
purpose, (2) whether the Chairman’s Request violates the
separation of powers, (3) whether § 6103(f)(1) is facially
unconstitutional, and (4) whether Treasury’s compliance with
the Request would violate the First Amendment. We address
each in turn.

We review the district court’s granting of the motions to
dismiss de novo. Cierco v. Mnuchin, 857 F.3d 407, 414 (D.C.
Cir. 2017). To survive a motion to dismiss, the complaint must
contain “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). In evaluating the sufficiency of the
complaint, we accept the complaint’s factual allegations as
true. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113
(D.C. Cir. 2000). But “we are not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain,
478 U.S. 265, 286 (1986).
 8
A.

The Trump Parties contend that the Chairman’s Request
exceeds Congress’s investigative powers. It does not.

The case law concerning Congressional requests for
information is confined almost entirely to information sought
via a Congressional subpoena. See generally Trump v. Mazars
USA, LLP, 140 S. Ct. 2019 (2020) (House committee
subpoenas to private financial institutions for financial
information); Eastland v. United States Servicemen’s Fund,
421 U.S. 491 (1975) (Senate subcommittee subpoena to a bank
for financial information); Quinn v. United States, 349 U.S.
155 (1955) (House subcommittee subpoena to individual to
answer questions); McGrain v. Daugherty, 273 U.S. 135
(1927) (Senate subcommittee subpoena to individual to answer
questions). Those cases are not directly on point in this case
where the vehicle for requesting information was created by a
statute passed by Congress and signed into law by the
Executive. However, we see no reason that the case law
shaping when and how Congress can request certain
information via subpoena should not inform our analysis of
Congress’s ability to do so via statute.

Congress’s authority to “secure needed information” is not
enumerated in the Constitution. McGrain, 273 U.S. at 161.
Regardless, it has long been held that the “power of inquiry—
with process to enforce it—is an essential and appropriate
auxiliary to the legislative function.” Id. at 174. This power is
broad and indispensable, but it is not without limits. Mazars,
140 S. Ct. at 2031.

A Congressional request for information “is valid only if
it is ‘related to, and in furtherance of, a legitimate task of
Congress.” Mazars, 140 S. Ct. at 2031 (quoting Watkins v.
 9
United States, 354 U.S. 178, 187 (1957)). Generally, the
request must “concern[] a subject on which ‘legislation could
be had.’” Eastland, 421 U.S. at 506 (quoting McGrain, 273
U.S. at 177). Congress does not have the “general power to
inquire into private affairs and compel disclosures.” McGrain,
273 U.S. at 173 (internal quotation marks omitted). “[T]here is
no congressional power to expose for the sake of exposure.”
Watkins, 354 U.S. at 200.

The Trump Parties contend that the Chairman’s Request is
an unconstitutional exercise of Congress’s investigative
powers for two reasons: because the Request is motivated by
the improper purpose of exposing the Trump Parties’ private
financial information and because the Request does not identify
a valid legislative purpose.

“There is no general authority to expose the private affairs
of individuals without justification in terms of the functions of
Congress.” Watkins, 354 U.S. at 187. “No inquiry is an end in
itself; it must be related to, and in furtherance of, a legitimate
task of the Congress. Investigations conducted solely for the
personal aggrandizement of the investigators or to ‘punish’
those investigated are indefensible.” Id. Similarly, Congress
cannot exercise its investigative powers for the purpose of law
enforcement because the power of law enforcement is vested
in the executive and judicial branches. Quinn, 349 U.S. at
161. But that an investigation “might possibly disclose crime
or wrongdoing” does not invalidate an otherwise proper
investigation. McGrain, 273 U.S. 179–80.

The Trump Parties claim that the Chairman’s Request is
mere pretext for an unconstitutional ulterior motive. In a deluge
of citations to statements of individual committee members,
statements made during Committee debate, reports published
by Representative Neal, statements from the Speaker of the
 10
House of Representatives, an op-ed, interview statements,
social media posts, and statements of Representatives who are
not members of the Committee, the Trump Parties assert that
the true purpose behind the Chairman’s Request is to expose
the Trump Parties’ tax returns to the public and to uncover
evidence of criminal conduct. However, they are looking for
evidence of improper purpose in the wrong place.

“[I]n determining the legitimacy of a congressional act we
do not look to the motives alleged to have prompted it.”
Eastland, 421 U.S. at 508. The Speech or Debate Clause, U.S.
Const. art. 1, § 6, cl. 1, protects against inquiry into the motives
behind the regular course of the legislative process, Eastland,
421 U.S. at 508. It is not our function to “test[] the motives of
committee members for this purpose.” Watkins, 354 U.S. at
200. “Their motives alone would not vitiate an investigation
which had been instituted by a House of Congress if that
assembly’s legislative purpose is being served.” Id.

Where, then, do we look for the purpose of the 2021
Request? For committee subpoenas, we have looked to
resolutions from the Committee. Here, where the Chair of the
Committee is authorized by statute to request the information
on his own without a committee vote, we look to the
Chairman’s written requests.

The Trump Parties insist that we can look only to the 2019
Request for a valid legislative purpose because they have
“plausibly alleged . . . that the 2019 [R]equest was narrowed in
2021, not reissued.” Appellant Br. at 30. But Appellants cannot
constrain what documents we consider through allegations in
their Complaint. The Chairman’s ability to request tax returns
and return information is governed by § 6103(f)(1). Nothing in
the statute constrains how many requests the Chairman can
submit or with what frequency he can submit them. The
 11
Chairman was free to supplement or supersede the 2019
Request with the 2021 Request, and that is where we will look
for whether the Request is supported by a legitimate legislative
purpose.

The 2021 Request identifies two potential subjects on
which Congress could legislate and therefore investigate. First,
the administration of the tax laws as they apply to a sitting
President. Second, a sitting President’s conflicts of interest.
Because we conclude that the requested returns and return
information could inform tax legislation concerning the
President, we do not reach the question of whether it could
inform legislation concerning a President’s conflicts of interest.

Throughout the 2021 Request, the Chairman makes it clear
that the Committee is concerned about “the extent to which the
IRS audits and enforces the Federal tax laws against a
President.” JA 87. Specifically, the Committee requires
information concerning the Presidential Audit Program.

In 1974, the public learned that the IRS had failed to
properly examine President Nixon’s tax returns. JA 87–88.
This led to the IRS implementing the Presidential Audit
Program. This program subjects every sitting President’s tax
returns to mandatory review by the IRS. Internal Rev. Man.
4.8.4.2. To this date, this program is solely regulated by IRS
regulations and has not been codified in statute.

According to the 2021 Request, “[t]he Committee has
reason to believe that the mandatory audit program is not
advancing the purpose for which it was created, which may
require Congress to act through legislation.” JA 88. The
Committee wants “assurance that sufficient safeguards exist to
shield a revenue agent from undue influence at the hands of a
President trying to secure a favorable audit.” Id. The
 12
Committee “seeks to explore legislation intended to ensure that
IRS employees in any way involved in a President’s audit are
protected in the course of their work and do not feel intimidated
because of the taxpayer’s identity.” Id. The Committee also
intends to explore “whether agents have had access to the
necessary resources to undertake an exhaustive review of a
complex taxpayer on an annual basis.” Id. at 89.

The Request includes an explanation as to why the Trump
Parties’ tax returns and return information are particularly
relevant to their inquiry. According to the Chair, President
Trump was a unique taxpayer as a President because his returns
were “inordinately large and complex.” JA 90 (quoting Letter
from Sheri A. Dillon and William F. Nelson to Mr. Donald J.
Trump, Re: Status of U.S. federal income tax returns (March 7,
2016)). The Committee is concerned that the regulations
governing the Presidential Audit Program “do not account for
such substantial business activities.” JA 91. The Committee
also cites to then-candidate Trump’s and then-President
Trump’s public statements directed toward the IRS that the
audit of his returns was “extremely unfair.” JA 91–92.

The 2021 Request articulates a clear legislative purpose on
a matter which legislation could be had: the Presidential Audit
Program. The Trump parties insist that any legislation
codifying the requirement that all Presidents undergo a
mandatory audit would violate the separation of powers. But
codifying the requirement of the audit is not the only legislation
contemplated by the Committee in the 2021 Request. The
Chairman states that the Committee is exploring the need for
legislation that would provide further protection to the IRS
employees conducting the audit and legislation ensuring that
they have sufficient resources to conduct the audit even when
the returns in question are “inordinately large and complex.”
The Chairman then goes on to explain why these specific
 13
returns and return information are particularly relevant to this
inquiry. This is all we can ask.

The Chairman has identified a legitimate legislative
purpose that it requires information to accomplish. At this
stage, it is not our place to delve deeper than this. The mere fact
that individual members of Congress may have political
motivations as well as legislative ones is of no moment. Indeed,
it is likely rare that an individual member of Congress would
work for a legislative purpose without considering the political
implications.

The statements of individual Committee members and
members who are not part of the Committee provided by the
Trump Parties do not change this. The courts do not probe the
motives of individual legislators. These motives are explicitly
protected by the Speech or Debate Clause.

B.

The Supreme Court has made it clear that when a
Congressional request for information concerns a President and
his personal papers, we must also examine whether that request
violates separation of powers principles.

A Congressional request for a President’s information
raises “significant separation of powers issues.” Mazars, 140
S. Ct. at 2033. When Congress has requested a President’s
information, we “must perform a careful analysis that takes
adequate account of the separation of powers principles at
stake, including both the significant legislative interests of
Congress and the ‘unique position’ of the President.” Id. at
2035 (quoting Clinton v. Jones, 520 U.S. 681, 698 (1997)).
 14
While it is clear from Mazars that we must consider how
this Request implicates the separation of powers, that Donald
Trump is a former President rather than a sitting President
complicates the analysis. How we should evaluate a
Congressional request for the information of a former President
is less clear.

The parties disagree over which test should be applied in
this case. The Executive Branch parties and the Committee ask
that we apply the separation of powers test from Nixon v. GSA.
433 U.S. 425 (1977). The Trump Parties ask us to apply the test
laid out in Mazars. 140 S. Ct. 2019 (2020).

This Court recently addressed this question in the most
recent iteration of the Mazars litigation, Trump v. Mazars USA,
LLP, --- F.4th ---, No. 21-5176, 2022 WL 2586480 (D.C. Cir.
July 8, 2022) (“Mazars V”). In Mazars V, the panel was
similarly confronted with a Congressional request for the
personal information of a former President. Despite familiar
arguments from the parties over which test should apply, the
panel found no reason “to abandon the Supreme Court’s
Mazars test in the Mazars case itself.” Mazars V, 2022 WL
2586480 at *8.

Therefore, it is likely law of the circuit that a
Congressional request for a sitting President’s personal
information is evaluated under the heightened Mazars standard
regardless of whether the President in question remains in
office. See id. However, because of the possibility of further
appellate review in both this case and Mazars and because of
distinctions, likely without a difference, between the case
before us and Mazars, we hold at the outset that the Chairman’s
request in this case passes muster under all suggested variations
of the separation of powers analysis. We walk through each in
turn.
 15

1. Nixon v. GSA

The Committee insists that the proper test for determining
whether the Request violates the separation of powers was laid
out by the Court in Nixon v. GSA. In that case, former President
Nixon brought a challenge to the Presidential Recordings and
Materials Preservation Act (“the PRMPA”). The PRMPA was
passed by Congress in reaction to the Watergate scandal. Nixon
v. GSA, 433 U.S. at 430–433. The Act required the
Administrator of the General Services Administration to
acquire and store certain Nixon administration records. Id. at
434. Former President Nixon challenged the PRMPA as a
violation of the separation of powers.

In Nixon v. GSA, the Court held that in determining
whether Congress has “disrupt[ed] the proper balance between
the coordinate branches, the proper inquiry focuses on the
extent to which it prevents the Executive Branch from
accomplishing its constitutionally assigned functions.” Nixon
v. GSA, 433 U.S. at 443 (citing United States v. Nixon, 418 U.S.
683, 711–12 (1974)). “Only where the potential for disruption
is present must we then determine whether that impact is
justified by an overriding need to promote objectives within the
constitutional authority of Congress.” Id.

In applying this test to the PRMPA, the Court held that
“nothing contained in the Act render[ed] it unduly disruptive
of the Executive Branch. . . .” Id. at 445. In particular, the Court
noted that the PRMPA was minimally intrusive because the
Executive Branch itself retained custody of the disputed
materials, and there was “abundant statutory precedent”
requiring disclosure of certain Executive Branch records. Id.
 16
Applying Nixon v. GSA to the case before us, we must first
ask if the Chairman’s Request has created any potential
disruption of the “Executive Branch from accomplishing its
constitutionally assigned functions.” Nixon v. GSA, 433 U.S. at
443. As noted by the district court, the only alleged burden to
the Executive Branch is that Congress could use § 6103(f)(1)
requests of a former President in an effort to influence a sitting
President’s conduct while in office. Committee on Ways and
Means v. U.S. Dep’t of the Treasury, --- F. Supp. 3d. ---, 2021
WL 5906031, at *17 (D.D.C. Dec. 14, 2021). Because this does
represent a “potential for disruption,” we turn to “whether that
impact is justified by an overriding need to promote objectives
within the constitutional authority of Congress.” Nixon v. GSA,
433 U.S. at 443.

This potential disruption, while extant, is minimal. For this
disruption to occur, Congress would need to make a request
under § 6103(f)(1) for the returns of a former President, and
then in the traditional give-and-take between the Legislature
and the Executive, threaten to do the same to the then-sitting
President when he is no longer in office. While this is certainly
possible, sitting Presidents, many of whom voluntarily release
tax returns and return information, may view this as no burden
at all. Therefore, the need demonstrated by Congress to justify
that potential disruption of the Executive Branch does not need
to be overwhelming.

We have already determined that the information
requested by the Chairman concerns a subject on which
legislation could be had: the efficacy of the Presidential Audit
Program. This inherently means that the Chairman is acting
within the “constitutional authority of Congress.” Nixon v.
GSA, 433 U.S. at 443. As for whether the “need” to legislate on
this issue is overriding of the burden imposed on the Executive
Branch, the Chairman made clear in his letter that the tax
 17
returns and return information of the Trump Parties are unique
among former Presidents, JA 90–91, and learning about how
the audit of these complex returns proceeded is necessary to
learn whether the Audit Program is sufficiently staffed and
resourced to handle such complex information. In this case, the
need for the Trump Parties’ information to inform potential
legislation overrides the burden to the Executive Branch
largely because that burden is so tenuous. Were Nixon v. GSA
the appropriate test to apply in this situation, the Trump Parties
have failed to demonstrate a burden that would outweigh the
Committee’s need for the requested information.

2. Mazars

The Trump Parties insist that we should apply the test
developed by the Court in Mazars. 140 S. Ct. 2019. In Mazars,
then-President Trump petitioned the courts to enjoin his
accounting firm from complying with House-issued
subpoenas. 140 S. Ct. 2027–28. The Court found that existing
frameworks for evaluating Congressional subpoenas were
insufficient to account for both the “significant legislative
interests of Congress” and “the unique position of the
President.” Id. at 2035 (quoting Clinton, 520 U.S. at 698). The
Court produced four factors that a court must consider when a
Congressional request implicates the President’s personal
information:

1. “Whether the asserted legislative
purpose warrants the significant step of
involving the President and his
papers[;]”
2. Whether the subpoena is “no broader
than necessary to support Congress’s
legislative objective[;]”
 18
3. Whether Congress has offered
“detailed and substantial evidence” to
show the subpoena furthers a valid
legislative purpose; and
4. Whether the subpoena burdens the
President as Chief Executive.

Id. at 2035–36. Because the Court of Appeals had not properly
considered the House’s request for the President’s personal
documents as an interbranch dispute, the Supreme Court
remanded for reconsideration under this framework.

On remand, the district court was ordered to apply the
Mazars four-part test, but a significant event prevented a
simple application of facts to law. President Trump was no
longer the sitting President, and the Mazars test was created
with a sitting President in mind. Recognizing this, the district
court created a “Mazars lite” test, “that is, an examination of
the Mazars factors cognizant of the fact that this case now
involves a subpoena directed at a former President.” Trump v.
Mazars USA LLP, 560 F. Supp. 3d 47, 65 (D.D.C. 2021)
(“Mazars IV”). Under Mazars lite, the analysis of each Mazars
factor is somewhat less rigorous because the request at issue
concerns a former President rather than a sitting President.
Mazars IV, 560 F. Supp. 3d at 65–66. According to the Trump
Parties, if we conclude that Mazars is not the correct
framework to apply in this case, we should apply Mazars lite
or a test like it.

While the district court’s development of the Mazars lite
test is well reasoned, we do not need to decide which version
of Mazars should be applied because the Chairman’s Request
survives the application of the more-rigorous Mazars.
 19
First, we must “carefully assess whether the asserted
legislative purpose warrants the significant step of involving
the President and his papers.” Mazars, 140 S. Ct. at 2035.
Because “confrontation between the two branches should be
avoided whenever possible,” Cheney v. United States Dist.
Court. for Dist. of Columbia, 542 U.S. 367, 389–90 (2004)
(internal quotations omitted), “Congress may not rely on the
President’s information if other sources could reasonably
provide Congress the information it needs in light of its
particular legislative objective,” Mazars, 140 S. Ct. at 2035–
36. Congress cannot look to the President as a “case study” for
general legislation, and the legislative process does not
necessarily require “full disclosure of all the facts” in the way
that criminal proceedings do. Id. at 2036 (citations omitted).

The Committee has asserted that its legislative purpose is
to assess the effectiveness of the Presidential Audit Program.
In particular, the Committee is interested in whether the
program is adequately resourced and sufficiently guarded from
external pressures. The Committee is evaluating a program that
applies only to the President and Vice President; this is not a
case study for general legislation. Mazars, 140 S. Ct. at 2036.
This is not an attempt by Congress to rely on the President’s
information when “other sources could reasonably provide
Congress the information it needs. . . .” Id. at 2035–36.

While the Committee could possibly have received similar
information by requesting the returns and return information of
different former Presidents or the sitting President, this does
not tilt this factor to weigh in the Trump Parties’ favor. Any
path the Committee could take to inform themselves about the
adequacy of the Presidential Audit Program would require
them to access the personal information of a former President.
There is no other source that would reasonably provide the
 20
Committee with the information it seeks while also completely
circumventing separation of powers concerns.

Second, Congress’s requests for a President’s personal
information should be “no broader than reasonably necessary
to support Congress’s legislative objective.” See Mazars, 140
S. Ct. at 2036. This is a “safeguard against unnecessary
intrusion into the operation of the Office of the President.” Id.
(quoting Cheney, 542 U.S. at 387). In the 2021 Request, the
Chairman requested the Trump Parties’ tax returns and return
information for each of the tax years 2015–2020. JA 92. The
Chairman also requested additional information about each
return

specifying: (a) whether such return is or
was ever under any type of examination
or audit; (b) the length of such
examination or audit; (c) the applicable
statute of limitations on such
examination or audit; (d) the issue(s)
under examination or audit; (e) the
reason(s) the return was selected for
examination or audit; and (f) the present
status of such examination or audit (to
include the date and description of the
most recent return or return information
activity).

Id. at 92–93. By requesting information from tax years 2015–
2020, the Chairman has requested one return that would have
been filed before President Trump assumed office, the four
returns filed while in office, and one return filed after President
Trump left office.
 21
The Trump Parties contend that the Committee should not
need to look at more than one year’s worth of information and
should only need access to the audit files but not the returns
themselves. The Trump Parties also assert that the returns and
return information from before and after President Trump was
in office are irrelevant to the Committee’s inquiry. Finally, the
Trump Parties insist that the Request is overbroad because it
makes no promises of confidentiality.

The Chairman’s Request has not clearly gone beyond the
scope of the Committee’s inquiry. It is understandable that the
Committee would want to compare returns filed during the
presidency with those filed in the years before and after to see
what effect, if any, Mr. Trump being the sitting President had
on how his returns were treated by the Presidential Audit
Program. Further, there is no reason that the Chairman’s
Request should be confined to a single year of returns and
return information. The Chairman has stated that the value of
requesting six years of information is the ability to compare one
year with another. And while it is possible that not every
document requested by the Chairman will provide the
Committee with the sought-after information, that is of no
consequence. The Committee is permitted to go “up some
‘blind alleys’ and into nonproductive enterprises.” Eastland,
421 U.S. at 509.

A Congressional request for information does not need to
ensure confidentiality to remain valid. United States v. Rumely,
345 U.S. 41, 43 (1953) (“It is the proper duty of a representative
body to look diligently into every affair of government and to
talk much about what it sees.” (internal quotation marks and
citation omitted)). When an inquiry uncovers information
worthy of legislation, that information often comes to light.
This is particularly true with regard to tax returns. There is no
constitutional guarantee to the privacy of tax returns. Rather,
 22
the privacy of tax returns is a creature of statute, the same
statute that authorizes the Chairman to request this information.
See 26 U.S.C. § 6103.

However, despite no guarantee of confidentiality in the
Chairman’s Request, the statute does address the Trump
Parties’ concerns. “[A]ny return or return information which
can be associated with, or otherwise identify, directly or
indirectly, a particular taxpayer shall be furnished to such
committee only when sitting in closed executive session unless
such taxpayer otherwise consents in writing to such
disclosure.” 26 U.S.C. § 6103(f)(1). What occurs during an
executive session of a committee may not be disclosed to the
public without a vote of the committee. Rules of the House of
Representatives, 117th Cong., Rule XI, cl. 2(k)(7) (2021).

Third, we must be “attentive to the nature of the evidence
offered by Congress to establish that a [request] advances a
valid legislative purpose.” Mazars, 140 S. Ct. at 2036. “The
more detailed and substantial the evidence of Congress’s
legislative purpose, the better.” Id. When the contemplated
legislation “raises sensitive constitutional issues . . . it is
‘impossible’ to conclude that a [request] is designed to advance
a valid legislative purpose unless Congress adequately
identifies its aims and explains why the President’s information
will advance its consideration of the possible legislation.” Id.
(citing Watkins¸ 354 U.S. at 205–06, 214–15).

In this case, the evidence cited in the 2021 Request is
primarily statements by President Trump or his agents.
President Trump’s own tax attorneys stated that his returns
were “inordinately large and complex.” JA 90. The Chairman
then cited to then-candidate Trump’s public statements
referring to the audits of himself and his assets as unfair. JA 91.
The Chairman even cited to the President’s own statement,
 23
delivered via the White House Press Secretary, describing the
Presidential Audit Program as “extremely unfair.” JA 91–92.

These public statements directly relate to the areas of the
Presidential Audit Program that the Chairman intends to
investigate: whether it is sufficiently resourced to audit a
President with large and complex returns, and whether those
conducting the audit have been improperly influenced by
President Trump’s statements regarding the Presidential Audit
Program. These statements do not provide irrefutable proof that
the Audit Program is lacking in resources or unable to insulate
itself from outside pressure, but that is not required. The
Committee is relying on public, verifiable sources rather than
on anonymous tips or pure conjecture.

Fourth, we must “be careful to assess the burdens imposed
on the President by a [request].” Mazars, 140 S. Ct. at 2036.
“[B]urdens imposed by a congressional [request] should be
carefully scrutinized, for they stem from a rival political branch
that has an ongoing relationship with the President and
incentives to use [requests] for institutional advantage.” Id.

This Mazars factor is difficult to assess in this case.
President Trump is no longer in office, and the current
administration has stated before the Court that it intends to
comply with the Chairman’s Request. Therefore, the question
presents itself of which burden should be examined. Do we
look at the burden the Request places on former President
Trump and the other Trump Parties, or do we look at the burden
these requests place on the current President? However, in this
case, we do not need to decide because after considering both
possible burdens, we find that the Request does not impose a
burden that would violate separation of powers principles.
 24
The Trump Parties insist that the Request imposes too
great a burden because it threatens to expose private financial
information of the Trump Parties and will deny the Trump
Parties their due process rights by interfering with an ongoing
audit. These certainly are burdens on the Trump Parties. As
discussed above, should the Committee find it necessary, it is
possible that the information turned over to the Chairman
might be made public. This is certainly inconvenient, but not
to the extent that it represents an unconstitutional burden
violating the separation of powers. Congressional
investigations sometimes expose the private information of the
entities, organizations, and individuals that they investigate.
This does not make them overly burdensome. It is the nature of
the investigative and legislative processes.

The Trump Parties further urge us to consider the burden
that this Request imposes on the sitting President. They claim
that it would hinder Congress’s “ongoing relationship with the
President,” Mazars, 140 S. Ct. at 2036, because this would
empower a future Congress to threaten or influence the sitting
President with invasive requests once he leaves office. As we
discussed in our Nixon v. GSA analysis, this burden is not
substantial. While it is possible that Congress may attempt to
threaten the sitting President with an invasive request after
leaving office, every President takes office knowing that he
will be subject to the same laws as all other citizens upon
leaving office. This is a feature of our democratic republic, not
a bug.

While the provided list of factors to consider in Mazars
may not be exhaustive, none of the provided four factors weigh
in favor of enjoining the 2021 Request. Therefore, we do not
see the need to consider any others. Applying the Mazars or
even the Mazars lite test, the Trump Parties’ attempt to halt the
Committee’s investigation fails.
 25

The separation of powers analysis in this case has required
much discussion of the intrusion by Congress into the
Executive Branch and the personal life of the Trump Parties
and the burden that such intrusions impose. While the burden
to the Trump Parties having their returns and return
information shared with the Committee is concrete, any burden
to the sitting President or the Executive Branch as a whole is
tenuous at best. Regardless, neither burden, under any test,
proves sufficient to require us to enjoin the Chairman’s
Request for the returns and return information.

The Trump Parties also contend that § 6103(f)(1) is
facially unconstitutional and therefore the Chairman’s Request
is invalid. Rather than arguing that there is no set of
circumstances under which § 6103(f)(1) could be
constitutionally applied, the Trump Parties misconstrue
precedent to argue that the statute is unconstitutional because
it fails to state a “valid rule.” Appellant Br. 23. According to
the Trump Parties, when a key limitation is missing from the
statutory text, the statute is unconstitutional. Applying this rule
to § 6103(f)(1), the Trump Parties argue that the statute
empowering the Chairman to request tax returns and return
information from Treasury must also include a requirement that
the request have a legitimate legislative purpose, otherwise the
statute cannot stand. However, this argument misstates the test
for assessing the facial constitutionality of a statute and
misunderstands the case law supporting it.

As recently as last year, the Supreme Court has confirmed
that outside of the First Amendment context, “a plaintiff
bringing a facial challenge must ‘establish that no set of
circumstances exists under which the [law] would be valid,’”
Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373,
 26
2387 (2021) (alteration in original) (quoting United States v.
Salerno, 481 U.S. 739, 745 (1987)), “or show that the law lacks
‘a plainly legitimate sweep,’” id. (quoting Washington State
Grange v. Washington State Republican Party, 552 U.S. 442,
449 (2008)).

In support of their argument, the Trump Parties rely on this
Court’s decision in Gordon v. Holder, 721 F.3d 638 (2013), to
support their “no valid rule” test. In that case, a plaintiff sought
a preliminary injunction against the Prevent All Cigarette
Trafficking Act (“PACT Act”) which would require him to
collect and pay all state and local taxes in advance of a delivery
of his products. If a seller failed to do so, they were subject to
federal criminal and civil penalties. Gordon, 721 F.3d at 642.
The statute in question did not include an explicit requirement
that the seller must first have established minimum contacts
with a jurisdiction before being required to pay taxes obligated
by the jurisdiction.

In considering the breadth of a preliminary injunction, we
stated that “when a statute erases the boundaries that define a
sovereign’s jurisdiction, as the PACT Act does to the
boundaries of state and local taxing jurisdictions, any
legitimate application is pure happenstance,” and that laws like
this “led the Supreme Court to sustain facial challenges to laws
that omit constitutionally-required jurisdictional elements,
even though all such laws necessarily have a ‘plainly legitimate
sweep.’” Id. at 654. In support of this statement, we pointed to
United States v. Lopez, 514 U.S. 549 (1995), and United States
v. Morrison, 529 U.S. 598 (2000). In those cases, the Supreme
Court permitted facial challenges to the Gun-Free School
Zones Act of 1990 and the Violence Against Women Act on
the grounds that they lacked a clear jurisdictional hook. Lopez,
514 U.S. at 551; Morrison, 529 U.S. at 613.
 27
But neither Gordon, Lopez, nor Morrison are comparable
to the case before us. Those cases permitted facial challenges
to statues criminalizing private conduct. The statute before us
now, § 6103(f)(1), does not penalize private conduct, it
regulates how the government interacts with itself. To succeed,
the Trump Parties must show that there is no set of
circumstances under which § 6103(f)(1) can be constitutionally
applied. If the statute is constitutional in “at least one scenario,”
the facial challenge fails. Chemical Waste Mgmt. v. EPA, 56
F.3d 1434, 1437 (D.C. Cir. 1995)).

This statute can be properly applied in numerous
circumstances, including the one before the court. The
Chairman could request returns and return information to
inform legislation concerning the Tax Code or the laws
provisioning the Treasury Department. Section 6103(f)(1) is
not facially unconstitutional.

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. Barenblatt, 360 U.S. 109,
126 (1959). 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. Scahill v. District of
Columbia, 909 F.3d 1177, 1185 (D.C. Cir. 2018). 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.”
Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019).
 28
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,” 26 U.S.C. § 6103(f)(1) (emphasis added), 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, JA 123, 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.

III. Conclusion

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.
 KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in part and concurring in the judgment: I concur in Parts I and
II.A and the portions of Part II.B of the majority opinion
analyzing the Trump Parties’ constitutional challenge to
26 U.S.C. § 6103(f)(1) and their First Amendment claim. I
agree with my colleagues that the Committee has stated a valid
legislative purpose, § 6103(f)(1) is not facially unconstitutional
and the Treasury Department’s compliance with the 2021
Request does not violate the First Amendment. With respect to
the majority’s separation-of-powers analysis in Parts II.B.1,
II.B.2 and III, I concur in the judgment only, as detailed infra.

Although I agree with my colleagues that the burdens
imposed on the Presidency by the Committee’s Request do not
rise to the level of a separation-of-powers violation, I conclude
that the burdens borne by the Executive Branch are more severe
and warrant much closer scrutiny than my colleagues have
given them. I write separately to highlight this shortcoming and
to urge caution given the foundational constitutional principles
at stake.

My colleagues correctly identify the four factors that the
Supreme Court in Trump v. Mazars USA, LLP, 140 S. Ct. 2019
(2020), instructed the court to consider when the Congress
requests the President’s personal papers or information.1 See
Majority Op. at 17–18 (citing Mazars, 140 S. Ct. at 2035–36).
Under the fourth factor, the Supreme Court directs that “courts
should be careful to assess the burdens imposed on the
President by” the congressional request. See Mazars, 140 S. Ct.

1
I focus on my colleagues’ application of the Supreme Court’s
Mazars test because, as they rightly note, “it is likely law of the
circuit that a congressional request for a sitting President’s personal
information is evaluated under the heightened Mazars standard
regardless of whether the President in question remains in office.”
Majority Op. at 14 (citing Trump v. Mazars USA, LLP, --- F.4th ---,
No. 21-5176, 2022 WL 2586480 (D.C. Cir. July 8, 2022)).
 2
at 2036. The reason is self-evident: the burdens “should be
carefully scrutinized” because “they stem from a rival political
branch that has an ongoing relationship with the President and
incentives to use” similar requests “for institutional
advantage.” Id. (emphases added). In a brief paragraph, my
colleagues dismiss what I view to be the most significant
burden—that granting such a request “would empower a future
Congress to threaten or influence the sitting President with
invasive requests once he leaves office”—as merely “possible”
and “not substantial.”2 Majority Op. at 24. I disagree and this
analysis, in my view, falls short of the “careful[] scrutin[y]”
required by Mazars. 140 S. Ct. at 2036.

To begin, the answer to the question of which burden
should be examined, Majority Op. at 23 (asking whether “we
look at the burden the Request places on former President
Trump and the other Trump Parties, or . . . at the burden these
requests place on the current President”), has been answered in
Mazars. There, the Supreme Court repeatedly made clear that
the focus of the inquiry is the burden imposed on the Office of
the President as an independent and co-equal branch of
government rather than the particular officeholder at the time
the request is made or during the then-current phase of
litigation. See 140 S. Ct. at 2036 (discussing “ongoing
relationship” and potential for “institutional advantage”
between rival political branches in context of burdens factor);
see also id. at 2034 (noting that similar requests “unavoidably
pit the political branches against one another”), 2036
(highlighting concerns about “intrusion[s] into the operation of
the Office of the President” with respect to the second factor—

2
I agree with my colleagues that the potential exposure of the
Trump Parties’ private financial information is not a burden that
implicates the separation of powers. See Majority Op. at 24.
 3
ensuring that request is “no broader than reasonably necessary
to support Congress’s legislative objective” (citation omitted)).

Next, the Congress’s potential and incentive to threaten a
sitting President with a post-Presidency § 6103(f)(1) request in
order to influence the President while in office should not be
dismissed so quickly. See Majority Op. at 24. The Supreme
Court recognized this as a legitimate concern in Mazars. See
140 S. Ct. at 2034 (“[A] demand may aim to harass the
President or render him ‘complaisan[t] to the humors of the
Legislature.’” (quoting THE FEDERALIST No. 71, at 483
(Alexander Hamilton) (J. Cooke ed. 1961) (second alteration
in original)); id. (without limits on such inquiries “Congress
could ‘exert an imperious controul’ over the Executive Branch
and aggrandize itself at the President’s expense, just as the
Framers feared” (quoting THE FEDERALIST No. 71, at 484
(Alexander Hamilton))). We have recently done so as well.
Trump v. Mazars USA, LLP, --- F.4th ---, ---, No. 21-5176,
2022 WL 2586480 at *8 (D.C. Cir. July 8, 2022) (“Congress
could perhaps use the threat of a post-Presidency pile-on to try
and influence the President’s conduct while in office.” (quoting
Trump v. Thompson, 20 F.4th 10, 44 (D.C. Cir. 2021)). What’s
more, I do not believe this concern can be dismissed so casually
as a mere possibility. See Majority Op. at 24. Indeed, it
happened to President Trump in Mazars. See --- F.4th at ---,
2022 WL 2586480 at *8 (“[T]he Committee specifically made
known, while President Trump remained in office, that the
Committee ‘fully intend[ed] to continue [its] investigation . . .
in the next Congress, regardless of who holds the presidency.’”
(alterations in original)). Although we cannot know the extent
to which the requests and investigations influenced—or were
intended to influence—President Trump’s conduct while in
office, it is not far-fetched to believe that such intrusive
inquiries could have a chilling effect on a President’s ability to
 4
fulfill his obligations under the Constitution and effectively
manage the Executive Branch.

Finally, I would place no significance on the fact that
President Trump no longer holds the office or on the current
Administration’s statement “that it intends to comply with the
Chairman’s Request.” Majority Op. at 23. This dispute pits the
Executive Branch against the Legislative Branch as
institutions, not current or former Presidents against the
chairmen of various congressional committees. And “the
interbranch conflict here does not vanish” simply because the
current Administration says so, the political winds shift or
different parties control one or the other rival branch. Cf.
Mazars, 140 S. Ct. at 2034. The constitutional principle at stake
is separation of powers, not separation of parties.3

As noted, the inquiry focuses on the burden imposed on
the Office of the President, not merely the former or current
occupant of that office. See id. at 2036. And here, given the
very real potential for the Congress to threaten a sitting
President with post-Presidency investigations, the burden on
the Executive imposed by a § 6103(f)(1) request is more severe
than the burden in Mazars. There, the Congress sought
production of financial records from President Trump’s

3
Notably, as our court recently observed in another context, the
Supreme Court has left open “the possibility that President Trump’s
ability to assert executive privilege may be unaffected by his status
as a former President—even in the face of the sitting President’s
opposition.” Mazars, --- F.4th at ---, 2022 WL 2586480 at *9; see
also Trump v. Thompson, 142 S. Ct. 680, 680 (2022) (Kavanaugh, J.,
respecting denial of application for stay) (observing “former
President must be able to successfully invoke the Presidential
communications privilege for communications that occurred during
his presidency, even if the current President does not support the
privilege claim”).
 5
personal accounting firm. Mazars, --- F.4th at ---, 2022 WL
2586480 at *1. The subpoena there did not necessarily impose
a severe burden on the Executive Branch as an institution
because the Executive had no role in retrieving, examining or
preparing documents for disclosure. Here, by contrast, the
Executive Branch—and the President as head of that branch—
is necessarily involved in complying with the request as the
Treasury Department and, specifically, the Internal Revenue
Service must retrieve, examine and prepare the requested tax
documents for disclosure.

My colleagues discuss none of this. And although their
thorough analysis of the Committee’s asserted legislative
purpose, the breadth of the request and the evidence offered by
the Committee to establish its legislative purpose, see Majority
Op. at 19–23, may suggest that the burden on the Executive
Branch may not be severe enough to violate the separation of
powers, a more searching inquiry into the burdens imposed by
the Committee’s request is warranted given the core
constitutional principle at issue.

Accordingly, I concur fully in Parts I and II.A, as well as
in Part II.B’s analysis of the Trump Parties’ constitutional
challenge and First Amendment claim. With respect to the
separation-of-powers discussion in Parts II.B.1, II.B.2 and III,
I concur in the judgment only.