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 thenPresident 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 hisletter, 

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.1See

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.