Judge questions why Justice reversed course on Trump taxes

McFadden, a Trump appointee, implied that the reversal was driven by politics and he said the new stance might dictate that Congress could be entitled not only to Biden’s returns — which have already been made public — but even the taxes filed by Biden’s son Hunter.

“I mean, if Congress changes hands in a couple years here and a Republican chairman of the House Ways and Means Committee asked for Hunter Biden’s tax returns, are [you] just going to say, ‘Oh sure, we’ve got to defer to Congress. They’ve said they’re interested in legislating on the presidential family. We’ve got to turn them over.’ Is that going to be the administration’s position?” the judge said.

McFadden’s comments were the latest twist in a yearslong effort by the House to obtain Trump’s tax returns. After Biden took office, DOJ negotiated with the House and agreed to drop its objection to the House Ways and Means Committee’s bid for the documents. But DOJ agreed to continue litigating the case before handing the returns to the Democratic-led panel.

Justice Department attorney James Gilligan said he couldn’t address the Hunter Biden hypothetical.

“I’m just a career DOJ attorney. I don’t speak for the administration,” Gilligan said.

“You speak for the United States, though,” the judge replied.

House General Counsel Douglas Letter suggested that politics and personal fealty to the president may have been at work in the 2019 memo — crafted by DOJ’s Office of Legal Counsel — not the recent revision.

“The prior OLC [Office of Legal Counsel] opinion was issued when Mr. Trump was the boss of OLC,” Letter noted.

However, McFadden, a Trump appointee, also said the new position staked out by the Justice Department’s Office of Legal Counsel was out of line with the robust view of executive power that office has traditionally upheld. He predicted it would be short-lived.

“I was struck by how deferential the 2021 OLC opinion is to Congress. OLC is not known for being deferential to anybody other than the president,” McFadden said. “I just have a hard time believing you are going to keep that view for other than this one request.”

For more than three hours on Tuesday, McFadden pressed and prodded House and Justice Department attorneys about their arguments for obtaining Trump’s tax returns and whether — now that Trump has left office — there are any separation of powers concerns remaining to justify blocking the IRS from providing them to lawmakers.

Throughout the hearing, McFadden questioned the attorneys on how heavily to weigh Trump’s concerns that Democratic lawmakers were seeking to obtain his tax returns for political reasons. He also wondered whether Congress’ demand for tax returns could be used as a “stick over future presidents” who could be forced to “play nicely with Congress or Congress will expose your tax returns.”

But Letter said both concerns were meritless, noting that every modern…