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.
President Trump has asserted executive privilege on all the material in special counsel Robert Mueller’s report that House Democrats have demanded in a major escalation of the continuing fight over access to the documents.
The move came as Democrats on the House Judiciary Committee planned a vote on holding Attorney General William Barr in contempt for his refusal to comply with a subpoena issued by the committee for the unredacted Mueller report and its underlying evidence.
The White House accused the House panel of acting only to damage Mr. Trump politically—calling Mr. Nadler’s actions “unlawful and reckless” and saying they would invoke executive privilege over the papers.
“Faced with Chairman Nadler’s blatant abuse of power, and at the Attorney General’s request, the President has no other option than to make a protective assertion of executive privilege,” said White House press secretary Sarah Sanders in a statement.
The dispute centers around the unredacted version of the Mueller report and the underlying evidence—some of which the Justice Department says by law it cannot provide because, in part, it involves grand-jury testimony that is secret. Democrats subpoenaed the material last month—saying that it was necessary for Congress to independently examine the material and the basis for Mr. Mueller’s findings.
.. The Justice Department, in its recommendation to Mr. Trump on executive privilege, said it was necessary to preemptively invoke the privilege to protect the administration’s prerogatives.
In response to the department’s ongoing refusal to provide the documents, the House Judiciary Committee is considering a contempt resolution against Mr. Barr
She did not — indeed could not — invoke executive privilege, a power that only Mr. Trump can wield to prevent disclosure of information to Congress. But she refused to answer anyway, as though executive privilege properly applied.
A self-respecting legislative branch would not allow executive-branch witnesses to so easily evade basic questioning, particularly when it concerns matters as important as the Russia investigation.
.. It is unjustifiable to use executive privilege when the White House communications director is asked about, say, the president’s involvement in crafting a deceptive public statement about his son’s infamous 2016 Trump Tower meeting with a Russian lawyer — or, for that matter, her own role in the episode.
.. When past presidents sought to prevent or limit disclosure, they typically either invoked executive privilege or worked out a deal with congressional investigators before taking that formal step. Now, top Trump administration officials are evading questions without the White House doing either.
.. Ms. Hicks’s behavior has not been isolated. Former Trump strategist Stephen K. Bannon was similarly uncooperative. Before the Senate this past June, Attorney General Jeff Sessions explained that he could not invoke executive privilege but that his refusal to answer certain questions protected “the right of the president to assert it if he chooses.” Even Corey Lewandowski, who never worked in the White House, was evasive.
.. Lawmakers at least followed up by subpoenaing Mr. Bannon, a step they failed to take with Ms. Hicks when she testified. But she is as deserving of a subpoena. Meanwhile, the House should move to hold Mr. Bannon in contempt for his continued foot-dragging, which would require the assent of Speaker Paul D. Ryan (R-Wis.).
.. Republicans held Attorney General Eric H. Holder Jr. in contempt when they were pursuing their trumped-up investigation of the “Fast and Furious” gunrunning scheme. Zealously defending the dignity of the legislative branch mattered to them when a Democrat was in the White House. And now?
White House communications director Hope Hicks refused to answer questions about the Trump administration that House investigators posed Tuesday as part of their probe of Russian interference in the 2016 election.
.. Hicks, who has already spoken with special counsel Robert S. Mueller III’s team as part of its probe, has become a central figure in a dispute between lawmakers and the White House about when and where witnesses can legitimately resist answering questions in a congressional probe.
.. at first, she categorically resisted answering any questions about events and conversations that had occurred since President Trump won the election, even though Trump has not formally invoked executive privilege with the panel.
.. Democrats on the panel tried to insist during the interview that Hicks be served with a subpoena, as was done with former White House strategist Stephen K. Bannon last month
.. the White House to clarify which questions pertaining to the period between Election Day and Trump’s inauguration she would answer
.. her interview continued for nine hours.
.. White House press secretary Sarah Huckabee Sanders refused to comment Tuesday on whether the White House had instructed Hicks to cooperate
.. she answered none of their questions pertaining to the period since Trump took office, which meant that lawmakers were unable to secure her testimony regarding a key event in which she played a role: the drafting of a misleading statement to explain an unorthodox meeting at Trump Tower in Manhattan between top Trump campaign members and a Russian lawyer during the 2016 race.