A confidential memo written by the IRS last year says that the agency must immediately turn over Trump’s tax returns to Congress if they are requested, unless the president invokes executive privilege, according to a new report from the Washington Post. The memo, which was never released, contradicts statements made by the Trump administration about why his returns haven’t been released.
Trump hasn’t invoked executive privilege in order to avoid turning over his tax returns. Instead, Treasury Secretary Steve Mnuchin has argued that Congress is demanding them without a justification.
But the IRS memo, obtained by the Post, says that disclosing the returns to Congress “is mandatory, requiring the Secretary to disclose returns, and return information, requested by the tax-writing Chairs.”
The IRS writes that the law “does not allow the Secretary to exercise discretion in disclosing the information provided the statutory conditions are met.”
The memo directly contradicts Mnuchin’s justification for not releasing the returns, writing 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 only way the IRS could avoid giving up the returns, they write, is “the invocation of the doctrine of executive privilege.”
It also notes that if Trump does invoke executive privilege, he might be asked to justify it. That justification would have to be something other than a desire to avoid a subpoena.
This is a pretty iron-clad opinion stating that the tax returns must be given to Congress.
According to the IRS, the memo was a draft written by the Office of Chief Counsel. The agency says the memo doesn’t represent its “official position,” and wasn’t forwarded to the Treasury Department. Even so, the IRS position would need to have changed dramatically since the memo was written in order for it to back up Mnuchin’s arguments.
The memo was apparently drafted last fall when Democratic wins in the midterms made it all but certain that a new House majority would be requesting the returns sooner or later.
A spokesperson for the Treasury Department told the Post that the department has never seen the memo. The spokesperson maintained Mnuchin’s position that the IRS is not obliged to turn over information to Congress if it doesn’t pertain directly to legislation.
Experts interviewed by the Post disagree.
“The memo is clear in its interpretation of the law that the IRS shall furnish this information,” William Lowrance, a former attorney with the IRS chief counsel’s office, told the Post.
“The memo writer’s interpretation is that the IRS has no wiggle room on this,” Daniel Hemel, a professor at the University of Chicago’s 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 memo’s surfacing is part of a string of bad news for the administration’s battles against House investigators. On Monday, a judge ruled that Trump’s accounting firm Mazars has to turn over subpoenaed information requested by Congress. Now it’s likely that the administration’s denial of tax returns will also go to court.
One official at the Treasury told the Post that on the issue of tax returns, they had no choice but to go along with what Trump wanted.
“The decision has been made,” the anonymous official said. “Now it’s up to us to try to justify it.”