Confidential draft IRS memo says tax returns must be given to Congress unless president invokes executive privilege

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 the first sign of potential dissent within the administration over its approach to the tax returns issue. The IRS said the memo, titled “Congressional Access to Returns and Return Information,” was a draft document written by a lawyer in the Office of Chief Counsel and did not represent the agency’s “official position.” The memo is stamped “DRAFT,” it is not signed, and it does not reference Trump.

The agency says the memo was prepared in the fall. At the time, Democrats were making clear they probably would seek copies of Trump’s tax returns under a 1924 law that states that the treasury secretary “shall furnish” tax returns to Congress.

Precisely who wrote the memo and reviewed it could not be learned. The agency says IRS Commissioner Charles Rettig and current chief counsel Michael Desmond, who was confirmed by the Senate in February, were not familiar with it until a Post inquiry this week. The IRS says it was never forwarded to Treasury.

Executive privilege is generally defined as the president’s ability to deny requests for information about internal administration talks and deliberations.

On Friday, Mnuchin rejected a subpoena from the House Ways and Means Committee to turn over the tax returns, a move that probably will now lead to a court battle. Mnuchin has criticized the demands as harassment that could be directed against any political enemy, arguing Congress lacks a “legitimate legislative purpose” in seeking the documents.

Breaking with precedent, Trump has refused to provide tax returns, saying without evidence they are under audit.

Mnuchin and other senior staff members never reviewed the IRS memo, according to a Treasury spokesman. But the spokesman said it did not undermine the department’s argument that handing over the president’s tax returns would run afoul of the Constitution’s mandate that information given to Congress must pertain to legislative issues.

The spokesman said the secretary is following a legal analysis from the Justice Department that he “may not produce the requested private tax return information.” Both agencies have denied requests for copies of the Justice Department’s advice to Treasury.

Some legal experts said the memo provides further evidence that the Trump administration is using shaky legal foundations to withhold the tax returns.

“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.”

The administration has resisted a range of House inquiries, although a federal judge on Monday ruled the president’s accounting firm must turn over his financial records to Congress.

Treasury Department officials said there had been extensive discussions about the tax return issue, with one official saying the issue put the agency in a difficult spot because Trump has predetermined the outcome — and because Mnuchin is a Trump ally who was the finance chair of his 2016 campaign.

The decision has been made,” this official said, who spoke on the condition of anonymity to discuss private conversations. “Now it’s up to us to try to justify it.”

Trump has told advisers he will battle the issue to the Supreme Court, according to people familiar with the matter. Trump recently has argued that the tax returns were an issue in the 2016 election but that because he won they should no longer be of concern.

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.

How the Supreme Court Replaced One Injustice With Another

.. 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.

Trump wants his ‘Space Force’ to be ‘separate but equal.’ Notice anything odd?

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.

Why Marx Was Wrong

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.

We All Live on Campus Now

When elite universities shift their entire worldview away from liberal education as we have long known it toward the imperatives of an identity-based “social justice” movement, the broader culture is in danger of drifting away from liberal democracy as well.

If elites believe that the core truth of our society is a system of interlocking and oppressive power structures based around immutable characteristics like race or sex or sexual orientation, then sooner rather than later, this will be reflected in our culture at large. What matters most of all in these colleges — your membership in a group that is embedded in a hierarchy of oppression — will soon enough be what matters in the society as a whole.

.. The idea of individual merit — as opposed to various forms of unearned “privilege” — is increasingly suspect.

..  Any differences in outcome for various groups must always be a function of “hate,” rather than a function of nature or choice or freedom or individual agency

.. Polarization has made this worse — because on the left, moderation now seems like a surrender to white nationalism, and because on the right, white identity politics has overwhelmed moderate conservatism.

.. Trump plays a critical role. His crude, bigoted version of identity politics seems to require an equal and opposite reaction.

.. there’s a huge temptation to respond in kind.

.. anger is rarely a good frame of mind to pursue the imperatives of reason, let alone to defend the norms of liberal democracy.

..  Liberals welcome dissent because it’s our surest way to avoid error. Cultural Marxists fear dissent because they believe it can do harm to others’ feelings and help sustain existing identity-based power structures.

..  the impulse to intimidate, vilify, ruin, and abuse a writer for her opinions chills open debate.

.. An entirely intended byproduct of this kind of bullying — and Roiphe is just the latest victim — is silence.

.. only a member of a minority group can speak about racism or homophobia, or that only women can discuss sexual harassment.

.. The only reason this should be the case is if we think someone’s identity is more important than the argument they might want to make

..  left-feminists are not just interested in exposing workplace abuse or punishing sex crimes, but in policing even consensual sex for any hint of patriarchy’s omnipresent threat.

..  In the struggle against patriarchy, a distinction between the public and private makes no sense.

.. There’s a reason that totalitarian states will strip prisoners of their clothing. Left-feminists delight in doing this metaphorically to targeted men — effectively exposing them naked to public ridicule and examination because it both traumatizes the object and more importantly sits out there as a warning to others.

.. Besides, if they’re innocent, they’ll be fine!

.. can anyone justify why the POSSIBLE innocence of men is so much more important than the DEFINITE safety and comfort of women?”

..  we now have a “gender editor” at the New York Times, Jessica Bennett

.. Does she understand that the very word intersectional is a function of neo-Marxist critical race theory? Is this now the guiding philosophy of the paper of record?

.. At The Atlantic, the identity obsession even requires exhaustive analyses of the identity of sources quoted in stories. Ed Yong, a science writer, keeps “a personal list of women and people of color who work in the beats that I usually cover,” so he can make sure that he advances diversity even in his quotes.

..  there is no art that isn’t rooted in identity.

.. I don’t doubt the good intentions of the new identity politics — to expand the opportunities for people previously excluded. I favor a politics that never discriminates against someone for immutable characteristics

.. what we have now is far more than the liberal project of integrating minorities. It comes close to an attack on the liberal project itself. Marxism with a patina of liberalism on top is still Marxism — and it’s as hostile to the idea of a free society as white nationalism is.

.. the core concepts of a liberal society —

  • the individual’s uniqueness,
  • the primacy of reason,
  • the protection of due process,
  • an objective truth

— are so besieged, this is one of the reasons.

.. The goal of our culture now is not the emancipation of the individual from the group, but the permanent definition of the individual by the group. We used to call this bigotry. Now we call it being woke. You see: We are all on campus now.

.. prudence that worries about unintended consequences; that values thrift; that tries to insure itself against future risks; that takes the responsibility of government seriously; that worries about extreme rhetoric; that balances the budget; that insists on constantly taking pains to protect inconvenient constitutional norms; that defends existing institutions. I could go on. It all began with Burke’s recoil from the French Revolution.

.. Is there any institution in the West that is currently less conservative than the GOP?

.. No institution that is integral to our liberal democracy is immune from attack. This includes law enforcement (the FBI), the Justice Department, an independent and free press, the prerogatives of the opposition party, and regular order in the Congress.

It is a party that would impeach a State Supreme Court rather than give up its gerrymandered districts.

.. its cult leader never misses an opportunity to deepen racial divides and to inflame the gender wars.

.. Whatever else this record is, it is an open and outright assault on any concept of prudence, responsibility, or moderation. Which is to say it is an assault on conservatism itself.

.. If there is any future for the conservative soul and mind in America, it will have to start with the wholesale destruction of the current Republican Party. I made that case more than a decade ago now.

Psychologists are facing consequences for helping with torture. It’s not enough.

Prior to settling, Mitchell and Jessen denied any legal responsibility, and their attorneys argued their inculpability by comparing them to the low-level technicians whose employers provided lethal gas for Hitler’s extermination camps.

.. The case marks the first instance of legal accountability of any kind for psychologists who abandoned ethical standards — and basic decency — while claiming they were merely following government orders on torture.

..  The perverse rationale: According to memos from government lawyers at that time, “close observation” by health professionals constituted clear evidence that there was no specific intent to cause severe pain or suffering.

.. None of these psychologists has ever been sanctioned for ethics violations by state licensing boards or professional associations — even the relative few whose identities are known. In part, this is because the American Psychological Association (APA) — the largest membership organization of psychologists in the world — did not effectively defend the profession’s bedrock do-no-harm principles.

.. In public forums, the APA’s ethics director dismissed reports of detainee abuse as “long on hearsay and innuendo, short on facts.”

.. One association president condemned dissident voices as “opportunistic commentators masquerading as scholars.” Another advised us to “turn down the temperature on outrage.” A high-profile military psychologist boasted in his memoir, “I confronted one of my critics and threatened to shut his mouth for him if he didn’t do it himself.”

.. The APA commissioned a comprehensive independent review, conducted by attorney David Hoffman of the Sidley Austin law firm. The 500-page report confirmed what our own research and investigations had found. It concluded that the APA, despite growing evidence of detainee mistreatment, had secretly coordinated with Defense Department officials to promote ethics policies that matched the government’s preference

.. This was accomplished, in part, by stacking a key APA task force with military intelligence insiders and relying on Pentagon representatives

.. APA leaders took this path to “curry favor” with the military establishment — a source of lucrative grants and contracts

.. we have an authoritarian-minded commander in chief who’s insisted that “torture works.”

.. Donald Trump declared that he would “bring back a hell of a lot worse than waterboarding.”

.. Since taking office, Trump has appointed both a CIA director who argued that the likes of Mitchell and Jessen are patriots, not torturers, and a deputy director who ran a CIA torture site and participated in the unlawful destruction of videotape evidence.

.. nominated for an administration position a lawyer who authored some of the infamous “torture memos

.. given serious consideration to reopening CIA black sites and expanding the use of the detention facility at Guantanamo Bay.

.. many Americans (roughly half, sometimes more) support the torture of terrorism suspects
..  contributed to radicalizing a new generation of adversaries.
.. Psychologists understand the lasting impact of trauma very well. The demons of deep psychic wounds can continue without end. Colleagues who work with torture survivors describe the victims’ overwhelming feelings of helplessness, brokenness and disconnection from other people, direct results of having been subjected to agonizing abuse and humiliation at the hands of another human being.
..  are haunted by flashbacks and nightmares, and a lasting sense of safety seems impossible to achieve.
.. psychologists’ complicity, whether through active participation or silent acquiescence, is so egregious.

Why I Was Fired by Google

James Damore says his good-faith effort to discuss differences between men and women in tech couldn’t be tolerated in company’s ‘ideological echo chamber’

How did Google, the company that hires the smartest people in the world, become so ideologically driven and intolerant of scientific debate and reasoned argument?

.. We all have moral preferences and beliefs about how the world is and should be. Having these views challenged can be painful, so we tend to avoid people with differing values and to associate with those who share our values. This self-segregation has become much more potent in recent decades. We are more mobile and can sort ourselves into different communities; we wait longer to find and choose just the right mate; and we spend much of our time in a digital world personalized to fit our views.

 .. Google is a particularly intense echo chamber because it is in the middle of Silicon Valley and is so life-encompassing as a place to work. With free food, internal meme boards and weekly companywide meetings, Google becomes a huge part of its employees’ lives. Some even live on campus. For many, including myself, working at Google is a major part of their identity, almost like a cult with its own leaders and saints, all believed to righteously uphold the sacred motto of “Don’t be evil.”
.. Echo chambers maintain themselves by creating a shared spirit and keeping discussion confined within certain limits. As Noam Chomsky once observed, “The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum.”
.. But echo chambers also have to guard against dissent and opposition. Whether it’s in our homes, online or in our workplaces, a consensus is maintained by shaming people into conformity or excommunicating them if they persist in violating taboos. Public shaming serves not only to display the virtue of those doing the shaming but also warns others that the same punishment awaits them if they don’t conform.
..In my document, I committed heresy against the Google creed by stating that not all disparities between men and women that we see in the world are the result of discriminatory treatment. When I first circulated the document about a month ago to our diversity groups and individuals at Google, there was no outcry or charge of misogyny. I engaged in reasoned discussion with some of my peers on these issues, but mostly I was ignored.
.. Everything changed when the document went viral within the company and the wider tech world. Those most zealously committed to the diversity creed—that all differences in outcome are due to differential treatment and all people are inherently the same—could not let this public offense go unpunished. They sent angry emails to Google’s human-resources department and everyone up my management chain, demanding censorship, retaliation and atonement.
.. Upper management tried to placate this surge of outrage by shaming me and misrepresenting my document, but they couldn’t really do otherwise: The mob would have set upon anyone who openly agreed with me or even tolerated my views.