A confidential Internal Revenue Service legal memo says tax returns must be given to Congress unless the president takes the rare step of asserting executive privilege, according to a copy of the memo obtained by The Washington Post.
The memo contradicts the Trump administration’s justification for denying lawmakers’ request for President Trump’s tax returns, exposing fissures in the executive branch.
Trump has refused to turn over his tax returns but has not invoked executive privilege. Treasury Secretary Steven Mnuchin has instead denied the returns by arguing there is no legislative purpose for demanding them.
But according to the IRS memo, which has not been previously reported, the disclosure of tax returns to the committee “is mandatory, requiring the Secretary to disclose returns, and return information, requested by the tax-writing Chairs.”
The 10-page document says the law “does not allow the Secretary to exercise discretion in disclosing the information provided the statutory conditions are met” and directly rejects the reason Mnuchin has cited for withholding the information.
“[T]he 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,” it says. It adds that the “only basis the agency’s refusal to comply with a committee’s subpoena would be the invocation of the doctrine of executive privilege.”
“The memo is clear in its interpretation of the law that the IRS shall furnish this information,” said William Lowrance, who served for about two decades as an attorney in the IRS chief counsel’s office and reviewed the memo at the request of The Post.
Daniel Hemel, a professor at the University of Chicago Law School who also reviewed the memo for The Post, said the document suggests a split over Trump’s returns between career staffers at the IRS and political appointees at that agency and the Treasury Department.
“The memo writer’s interpretation is that the IRS has no wiggle room on this,” Hemel said. “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.”
Last week, Mnuchin told a Senate panel that Treasury Department lawyers held an early discussion about disclosing the tax returns long before Democrats officially demanded the documents in April. He did not reveal details of that deliberation or say what, if any, legal memos he had reviewed.
Some legal experts have held that the law is clear in giving Congress the power to compel the provision of the returns. But other former government lawyers, including two who served in the Reagan and George H.W. Bush administrations, have argued that the law is unconstitutional and could lead to widespread abuses of taxpayer privacy for political aims.
The IRS memo describes how and why Congress has the authority to access tax returns, explaining the origin of the provision and how it has been interpreted over the decades.
It highlights the special powers given to three committees for compelling the release of tax returns: the House Ways and Means Committee, the Senate Finance Committee, and the Joint Committee on Taxation. Other congressional committees, the memo emphasizes, do not have the same authority.
When it comes to the Ways and Means Committee, the obligation to divulge the returns “would not be affected by the failure” to give a reason for the request. By contrast, other committees “must include a purpose for their request for returns and return information when seeking access,” the memo states.
“One potential basis” for refusing the returns, the memo states, would be if the administration invoked the doctrine of executive privilege.
But 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.
Earlier this month, the nonpartisan Congressional Research Service published a review of Section 6103 of the Internal Revenue Code that found the code “evinces no substantive limitations” on the Ways and Means Committee’s authority to receive the tax returns.
But, the CRS report added, the committee’s authority “arguably is subject to the same legal limitations that generally attach to Congress’ use of other compulsory investigative tools,” including the need to serve some “legislative purpose” and not breach constitutional rights.
.. During World War II, about 120,000 men, women and children of Japanese descent, including almost 40,000 foreign nationals living on the West Coast, were removed from their homes, forced to forfeit their possessions and then incarcerated on the basis of military orders authorized by the president.
.. The real reason for the government’s deplorable treatment of Japanese Americans was not acts of espionage but rather a baseless perception of disloyalty grounded in racial stereotypes
.. When President Trump used questionable evidence to issue executive orders last year banning immigration from predominantly Muslim countries, I heard the same kind of stereotypes that targeted the Japanese-Americans in World War II being used against Muslims.
.. we implored the court to repudiate its decisions in those cases while affirming their greater legacy: Blind deference to the executive branch, even in areas in which the president must wield wide discretion, is incompatible with the protection of fundamental freedoms.
.. But the court’s repudiation of the Korematsu decision tells only half the story. Although it correctly rejected the abhorrent race-based relocation and incarceration of Japanese Americans, it failed to recognize — and reject — the rationale that led to that infamous decision. In fact, the Supreme Court indicated that the reason it addressed Korematsu was because the dissenting justices noted the “stark parallels between the reasoning of” the two cases.
.. the Supreme Court seemed to repeat the same bad logic of the 1940s decision by rubber stamping the Trump administration’s bald assertions that the “immigration travel ban” is justified by national security.
.. As Justice Sonia Sotomayor explained in her dissent
.. By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”
.. The court’s decision replaced one injustice with another nearly 75 years later.
Separate but equal” is a segregation-era term — one that most Americans are trying to put behind them, not delightedly apply to the armed forces.
.. Another Trump administration favorite is “law and order,” a holdover from Richard M. Nixon’s 1968 campaign. Candidate Trump reclaimed it in 2016 and has been repeating the term ever since. It’s not about actual law and order, of course (otherwise, something would have to be done about the array of grifters and criminals parading through the White House and Cabinet), but about creating a perception of growing crisis. The purpose of the term is to spawn nightmares of violence and criminality, controllable only from the top down. And it’s best applied in a racialized manner —
- to “illegals,”
- immigrant “animals” and
- purveyors of inner-city “American carnage.”
.. Which brings us to “America First,” the phrase that rolls off Trump’s tongue — and Twitter feed — with a gleefulness that belies its distasteful history. That particular slogan rose to prominence around 1915, when President Woodrow Wilson used the phrase to defend American neutrality in World War I. Its nativist undertones lent it credibility as a Ku Klux Klan slogan, and, grounded in nationalism and xenophobia, the phrase was again famously deployed by anti-Semite Charles Lindbergh to advocate for keeping America out of World War II.
.. What Trump’s go-to word associations have noticeably in common is that they are all phrases of division, plucked from the uglier chapters of the past century of American history. They are racialized. And they are used to stoke a fear of the other while promoting self-serving — Trump-serving — ways of quashing dissent and asserting authority.
.. Just a day after using “separate but equal,” Trump branched out to using shameful episodes in other countries’ recent histories to supply the vocabulary for his spur-of-the-moment public statements. In a tweet Tuesday morning, he attempted to lay the family separation policy at the feet of Democrats, saying that “they don’t care about crime and want illegal immigrants, no matter how bad they may be, to pour into and infest our Country, like MS-13.” An outside population “infesting” a nation, like vermin. Where have we heard that before?
.. Trump’s flights of language are bizarre but not entirely accidental. This Space Force announcement should remind us that even when our administration talks about the future, we should beware attempts to pull us back into the past.
On the occasion of Karl Marx’s 200th birthday, the co-founder of communism has received more than a few positive reappraisals, even from Western leaders. But those arguing that Marx cannot be blamed for the atrocities that his ideas inspired should reexamine his ideas... For much of the twentieth century, 40% of humanity suffered famines, gulags, censorship, and other forms of repression at the hands of self-proclaimed Marxists... Marx regarded private property as the source of all evil in the emerging capitalist societies of his day. Accordingly, he believed that only by abolishing it could society’s class divisions be healed, and a harmonious future ensured... Under communism, his collaborator Friedrich Engels later claimed, the state itself would become unnecessary and “wither away.” These assertions were not made as speculation, but rather as scientific claims about what the future held in store... it was all rubbish, and Marx’s theory of history – dialectical materialism – has since been proved wrong and dangerous in practically every respect. The great twentieth-century philosopher Karl Popper, one of Marx’s strongest critics, rightly called him a “false prophet.” And, if more evidence were needed, the countries that embraced capitalism in the twentieth century went on to become democratic, open, and prosperous societies.By contrast, every regime that has rejected capitalism in the name of Marxism has failed – and not by coincidence or as a result of some unfortunate doctrinal misunderstanding on the part of Marx’s followers. By abolishing private ownership and establishing state control of the economy, one not only deprives society of the entrepreneurship needed to propel it forward; one also abolishes freedom itself... Because Marxism treats all contradictions in society as the products of a class struggle that will disappear when private property does, dissent after the establishment of communism is impossible.By definition, any challenge to the new order must be an illegitimate remnant of the oppressive order that came before... Marx showed almost no interest in people as they actually exist. “Marxism takes little or no account of the fact that people are born and die, that they are men and women, young or old, healthy or sick,” he writes. As such, “Evil and suffering, in his eyes, had no meaning except as instruments of liberation; they were purely social facts, not an essential part of the human condition.”.. Xi views China’s economic development over the past few decades as “cast iron proof” of Marxism’s continued validity.But, if anything, it is exactly the other way around.it was the China of pure communism that produced the famine and terror of the “Great Leap Forward” and the “Cultural Revolution.” Mao’s decision to deprive farmers of their land and entrepreneurs of their firms had predictably disastrous results, and the Communist Party of China has since abandoned that doctrinaire approach.Under Mao’s successor, Deng Xiaoping, the CPC launched China’s great economic “opening-up.” After 1978, it began to restore private ownership and permit entrepreneurship, and the results have been nothing short of spectacular... If China’s development is being held back by anything today, it is the remnants of Marxism that are still visible in inefficient state-owned enterprises and the repression of dissent.