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.

The rape allegation against Bill Clinton, explained

But it’s not just Lewinsky. Jones, a former Arkansas state employee, sued Clinton during his presidency for allegedly exposing himself to her when he was governor in 1991. Kathleen Willey claims that Clinton fondled her breast and forced her hand on his crotch in the Oval Office in 1993, when she was a White House volunteer.

Most seriously of all, Juanita Broaddrick claims that Clinton raped her during his 1978 campaign for Arkansas governor.

.. “As gross and cynical and hypocritical as the right’s ‘what about Bill Clinton’ stuff is, it’s also true that Democrats and the center left are overdue for a real reckoning with the allegations against him.”

.. And indeed, the Juanita Broaddrick case is the hardest one for admirers of Bill Clinton. Her allegation has never been definitively refuted. Only she and Bill Clinton know what the truth of the matter in the case is. But if one generally believes it’s important to believe the victim, it’s hard to argue that this case should be an exception.

.. Once she was at a hotel in Little Rock, she claims Clinton told her that he wasn’t going to the campaign headquarters and offered to meet her in her hotel lobby coffee shop instead. Once he arrived, she says he called her room and suggested that they have coffee there, since the lobby had too many reporters.

.. As she tells the story, they spent only a few minutes chatting by the window — Clinton pointed to an old jail he wanted to renovate if he became governor — before he began kissing her. She resisted his advances, she said, but soon he pulled her back onto the bed and forcibly had sex with her. She said she did not scream because everything happened so quickly. Her upper lip was bruised and swollen after the encounter because, she said, he had grabbed onto it with his mouth.

“The last thing he said to me was, ‘You better get some ice for that.’ And he put on his sunglasses and walked out the door,” she recalled.

..  Norma Rogers, who was director of nursing at Broaddrick’s nursing home at the time, told reporters that she entered the hotel room shortly after the assault allegedly took place, and “found Mrs. Broaddrick crying and in ‘a state of shock.’ Her upper lip was puffed out and blue, and appeared to have been hit.

..  Clinton called her nursing home a half-dozen times that year, getting through once and asking when she was going to be back in Little Roc

.. In 1984, she claims she got a letter from Clinton after her nursing home was recognized as one of the top facilities in the state, with a handwritten note saying, “I admire you very much.” She interpreted that as a thank you for her silence.

.. in 1991, she says she saw Clinton outside a meeting on nursing home standards in Little Rock, and that he said he wanted to apologize to her, and asked what he could do to make things right. She recalls saying “nothing,” and walking away.

.. About six months after her initial interviews in 1999, Broaddrick told the Drudge Report that mere weeks after the alleged assault, Hillary Clinton had tried to thank her for her silence on the matter at a political rally:

..  She caught me and took my hand and said ‘I am so happy to meet you. I want you to know that we appreciate everything you do for Bill.’ I started to turn away and she held onto my hand and reiterated her phrase — looking less friendly and repeated her statement — ‘Everything you do for Bill’. I said nothing. She wasn’t letting me get away until she made her point. She talked low, the smile faded on the second thank you. I just released her hand from mine and left the gathering.”

.. She only came forward after she was interviewed by Independent Counsel Kenneth Starr’s office and her allegation leaked.

.. NBC News reporter Lisa Myers pursued her for nearly a year before she agreed to an interview, and that she came forward because she wanted to rebut false rumors circulating after her statements to prosecutors (like that David Broaddrick had accepted hush money from the Clintons in exchange for silence).

..  Blumenthal argues, she “had no standing as a reliable witness.” That’s one interpretation. But it often takes a while for rape accusers to come forward, so Broaddrick’s initial unwillingness to relay the allegation is hardly airtight proof she’s lying.

.. This assertion, that a “true” rape victim would cut off all contact with their rapist, is rather misleading and pernicious, and maintaining contact with an alleged assailant is hardly proof that a victim is lying. “It is common for victims to maintain contact with their abusers because they may still feel affection for them even though they hate the abuse,”

.. “It is also common for some victims to maintain contact in an attempt to regain control over their assault. Others may maintain contact in an attempt to regain a feeling of normalcy.”

.. “Privately, Clinton’s lawyers have conceded that Clinton may have had consensual sex with Broaddrick but insist that he would have never forced himself upon an unwilling participant.”

.. she says she was traumatized and blamed herself for what happened. “I felt responsible. I don’t know if you know the mentality of women and men at that time. But me letting him come to my room? I accepted full blame.”