As the White House continues to stonewall efforts by congressional Democrats to obtain President Donald Trump’s tax returns—including by refusing to comply with a subpoena—a confidential IRS draft memo that leaked late Tuesday appeared to completely undercut Treasury Secretary Steve Mnuchin’s justification for withholding the documents.
First obtained by the Washington Post, the memo states that federal law “does not allow the secretary to exercise discretion in disclosing the information provided the statutory conditions are met.”
Mnuchin, who oversees the IRS, has refused to release the president’s tax returns to the House Ways and Means Committee on multiple occasions on the grounds that “the committee’s request lacks a legitimate legislative purpose.”
But the 10-page IRS memo (pdf)—reportedly prepared last fall “by a lawyer in the Office of Chief Counsel”—makes clear that the “secretary’s obligation to disclose return and return information would not be affected by the failure of a tax-writing committee… to state a reason for the request.”
“The memo writer’s interpretation is that the IRS has no wiggle room on this,” Daniel Hemel, a professor at the University of Chicago Law School, told the Post. “Mnuchin is saying the House Ways and Means Committee has not asserted a legitimate legislative purpose. The memo says they don’t have to assert a legitimate legislative purpose—or any purpose at all.”
The draft memo points to one possible way in which the White House could justify withholding Trump’s tax returns: executive privilege.
“But,” the Post reported, “the IRS memo notes that executive privilege is most often invoked to protect information, such as opinions and recommendations, submitted as part of formulating policies and decisions. It even says the law ‘might be read to preclude a claim of executive privilege,’ meaning the law could be interpreted as saying executive privilege cannot be invoked to deny a subpoena.”
Here's the relevant section. What it says, to my eye and rightly, is that executive privilege doesn't apply to things like tax returns, and can't override the disclosure law, but there may be a precedent for withholding *if they are evidence in a criminal investigation* 😉😉😉 pic.twitter.com/CTxvwWttIe
— Brian Beutler (@brianbeutler) May 22, 2019
While the IRS told the Post that the memo was never forwarded to Mnuchin, former IRS commissioner John Koskinen said in an interview with the New York Times that it would be “stunning” if the Treasury Secretary did not know about the document.
In response to the leaked memo, Rep. Lloyd Doggett (D-Texas)—a member of the House Ways and Means Committee—said in a statement that Congress must take action, including possible imprisonment of Mnuchin, in the face of the Trump administration’s refusal to comply with the law.
“Because no amount of legal advice will stop the lawlessness and lies, Congress should use all of our powers to enforce compliance, including fines and confinement,” Doggett said. “‘Shall’ means ‘shall,’ and ‘stall’ means ‘stall.’ It’s long past time for Congress to stop letting the Trump administration run out the clock on any accountability for its continued abuse of power.”