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.
WASHINGTON — In the middle of his crowded dinner in Buenos Aires with President Xi Jinping of China, President Trump leaned across the table, pointed to Robert Lighthizer, the United States trade representative whose skepticism of China runs deep, and declared, “That’s my negotiator!”
He then turned to Peter Navarro, his even more hawkish trade adviser, adding, “And that’s my tough guy!” according to aides with knowledge of the exchange.
Now, with talks between China and the United States set to begin this week in Beijing, Mr. Lighthizer, aided by Mr. Navarro, faces the assignment of a lifetime: redefining the trade relationship between the world’s two largest economies by Mr. Trump’s March 2 deadline to reach an agreement.
And he must do it in a way that tilts the balance of power toward the United States. His approach will have significant ramifications for American companies, workers and consumers whose fortunes, whether Mr. Trump likes it or not, are increasingly tied to China.
First, however, Mr. Lighthizer will need to keep a mercurial president from wavering in the face of queasy financial markets, which have suffered their steepest annual decline since 2008. Despite his declaration that trade wars are “easy to win” and his recent boast that he is a “Tariff Man,” Mr. Trump is increasingly eager to reach a deal that will help calm the markets, which he views as a political electrocardiogram of his presidency.
Mr. Trump has repeatedly told his advisers that Mr. Xi is someone with whom he can cut a big deal, according to people who have spoken with the president. On Saturday, Mr. Trump called Mr. Xi to discuss the status of talks, tweeting afterward that good progress was being made. “Deal is moving along very well,” Mr. Trump said.
The administration has tried to force China to change its ways with stiff tariffs on $250 billion worth of Chinese products, restrictions on Chinese investment in the United States and threats of additional levies on another $267 billion worth of goods. China has responded with its own tit-for-tat tariffs on American goods. But over a steak dinner during the Group of 20 summit meeting in Argentina, Mr. Xi and Mr. Trump agreed to a 90-day truce and to work toward an agreement that Mr. Trump said could lead to “one of the largest deals ever made.”
Mr. Lighthizer — whose top deputy will meet with Chinese officials this week ahead of more high-level talks in February — has played down any differences with Mr. Trump and views his role as ultimately executing the directive of his boss. But the trade representative, who declined to be interviewed, has told friends and associates that he is intent on preventing the president from being talked into accepting “empty promises” like temporary increases in soybean or beef purchases.
Mr. Lighthizer, 71, is pushing for substantive changes, such as forcing China to end its practice of requiring American companies to hand over valuable technology as a condition of doing business there. But after 40 years of dealing with China and watching it dangle promises that do not materialize, Mr. Lighthizer remains deeply skeptical of Beijing and has warned Mr. Trump that the United States may need to exert more pressure through additional tariffs in order to win true concessions.
When Mr. Lighthizer senses that anyone — even Mr. Trump — might be going a little soft on China, he opens a paper-clipped manila folder he totes around and brandishes a single-page, easy-reading chart that lists decades of failed trade negotiations with Beijing, according to administration officials.
“Bob’s attitude toward China is very simple. He wants them to surrender,” said William A. Reinsch, a former federal trade official who met him three decades ago when Mr. Lighthizer was a young aide for former Senator Bob Dole of Kansas. “His negotiating strategy is simple too. He basically gives them a list of things he wants them to do and says, ‘Fix it now.’”
Mr. Trump’s selection of Mr. Lighthizer last month to lead the talks initially spooked markets, which viewed the China skeptic’s appointment as an ominous sign. It also annoyed Chinese officials, who had been talking with the Treasury secretary, Steven Mnuchin, a more moderate voice on trade and the primary point of contact for Liu He, China’s top trade negotiator. Mr. Mnuchin has urged the president to avoid a protracted trade war, even if that entails reaching an interim agreement that leaves some issues unresolved.
Mr. Mnuchin, who attended the G-20 dinner, helped Mr. Trump craft an upbeat assessment declaring the Buenos Aires meeting “highly successful” in the presidential limousine back to the airport, according to a senior administration official.
The disparate views among Mr. Trump’s top trade advisers have prompted sparring — both publicly and behind the scenes.
During an Oval Office meeting with the trade team the fall of 2017, Mr. Lighthizer accused Mr. Mnuchin and Gary D. Cohn, the former National Economic Council director, of bad-mouthing him to free-trade Republican senators.
The argument grew so heated that the White House chief of staff, John F. Kelly, quickly pulled the combatants into the nearby Roosevelt Room and away from the president, where the argument raged on for a few more minutes, according to two witnesses.
Emily Davis, a spokeswoman for the United States trade representative, disputed the account.
Mr. Lighthizer has since worked to increase his own face time with Mr. Trump. He has joked to colleagues that he has more influence with Mr. Trump during winter months because he is able to hitch a ride on Air Force One during the president’s flights down to Mar-a-Lago, which is several miles from Mr. Lighthizer’s own $2.3 million waterfront condo in Palm Beach, Fla.
He used that access to argue to Mr. Trump that the United States has never had more leverage to extract structural reforms on intellectual property, forced transfer of technology from American companies and cybercrime. But while Mr. Trump has jumped at the chance to claim victory in changing China’s ways, experts say that what Mr. Lighthizer is demanding would require significant shifts in how Beijing’s central government and its manufacturing sector coordinate their activities, and that might simply not be possible in the short term.
“Good luck with that,” Mr. Scissors said.
Those who know Mr. Lighthizer say he will try to force concessions through a combination of pressure tactics, like tariffs, and public condemnation. Mr. Lighthizer — who described his own negotiating style as “knowing where the leverage is” during a 1984 interview — typically presents few specific demands during initial talks while publicly bashing efforts by the other side.
He used that approach during recent talks with Canada and Mexico to revise the North American Free Trade Agreement, criticizing foreign counterparts as intransigent and characterizing complaints by American businesses as pure greed.
Mr. Lighthizer’s unsparing view of China comes, in part, from his childhood in Ashtabula, Ohio, an industrial and shipping town on the Great Lakes hit by the offshoring of steel and chemical production. For much of his career, Mr. Lighthizer was a lonely protectionist voice in a Republican Party dominated by free traders, alternating between jobs in government and a lucrative private law career representing large American corporations like United States Steel in trade cases against China.
Mr. Lighthizer found his way into Mr. Trump’s orbit through his work in the steel industry, where he gained prominence by filing lawsuits accusing Japan and China of dumping metals into the United States, in violation of trade laws. In 2011, Mr. Lighthizer caught Mr. Trump’s eye with an opinion piece in The Washington Times, in which he defended Mr. Trump’s approach to China as consistent with conservative ideology and compared the future president to Republican icons like Ronald Reagan.
Taciturn in public and self-deprecating in private, Mr. Lighthizer sees himself as a serious player on the world stage: Two recent guests to Mr. Lighthizer’s Georgetown townhouse were greeted by the stern visage of their host staring down at them from an oil portrait on the wall.
The trade adviser is guarded around Mr. Trump, often waiting until the end of meetings to make his points and quietly nudging the president away from actions he views as counterproductive, current and former officials said. That was the case in mid-2017 when he cautioned the president against withdrawing unilaterally from the World Trade Organization, adding for emphasis, “And I hate the W.T.O. as much as anybody.”
He does not always get his way. In the wake of a new trade agreement with Mexico and Canada this fall, Mr. Lighthizer urged Mr. Trump to consider easing steel and aluminum tariffs on those countries and replacing them with less burdensome quotas. Mr. Trump rejected his plan, according to negotiators from all three countries.
A poker-faced Mr. Lighthizer broke the news to his Mexican and Canadian counterparts by declaring the proposal was inoperative, one of the officials said.
The president also ignored Mr. Lighthizer’s advice in early December when he announced that he intended to begin the six-month process of withdrawing the United States from Nafta in order to pressure House Democrats into passing the new United States-Mexico-Canada Agreement.
That threat undermined months of quiet negotiations between Mr. Lighthizer, labor groups and Democrats like Senator Sherrod Brown of Ohio and Representative Nancy Pelosi of California to try to win their support for the new trade deal. Mr. Trump has yet to follow through on his threat, and Mr. Lighthizer continues trying to work with Democrats to get the new trade deal approved.
“Bob is trying to provide stability and focus in a completely chaotic environment,” Mr. Brown said. “I can’t speak for Bob, but I am certain he is frustrated. How could you not be frustrated as the U.S. trade representative for a president who knows what his gut thinks but hasn’t put much of his brains into trade?”
Was the president trying to shore up his support with a base grown tired of foreign interventions? Did he cave when Turkish President Recep Tayyip Erdogan told him over the phone that he was going to carry his operations against the Kurds into Syrian territory? Was Trump’s decision a momentary whim now incredibly become indelible history? Who can say? Just in time for Christmas, Trump has finally brought us the peace that passeth all understanding.
Even by Trumpian standards, the troop-withdrawal announcement looked haphazard. And it wasn’t the Trump administration’s only holiday surprise. On Saturday, Treasury Secretary Steven Mnuchin announced (on Twitter, naturally) that the president had no intention of firing Federal Reserve Chair Jerome H. Powell. Which of course raised the possibility that he might. On Sunday, Mnuchin returned with a stunning encore: He said he had spoken with the heads of the United States’ six largest banks to confirm that they had “ample liquidity available for lending” and haven’t had “any clearance or margin issues . . . the markets continue to function properly.”
.. Mnuchin’s actions are both more and less mysterious than the president’s. Less, because it seems clear why his Twitter feed developed a sudden nervous tic: He was trying to appease his boss. More, because neither Mnuchin nor anyone else understands how to calm the impetuous, irascible occupant of the Oval Office.
Presumably, the president is displeased by the recent decline in financial markets. It’s less clear whether he, or anyone else, actually believed that investors would perk right up if the treasury secretary, for no apparent reason, started shouting, “Guys, everything’s fine! We’re not going to have another financial crisis, okay?”
To be fair, it’s not clear what would cheer them up. Which brings us to the deepest mystery of all: Why were investors so optimistic in the first place?
I asked a number of financial professionals that question back when the bull market was still charging ahead. After all, Trump had promised tariffs, which large, publicly traded corporations tend not to like; he had promised immigration restrictions, which such companies really don’t like; and finally, he had promised lots of uncertainty, which those firms hate with the white-hot fire of a thousand suns.
The boom could be viewed as a collective sigh of relief that Democrats wouldn’t be finding new and creative ways to regulate the private sector. But given the protectionist drawbacks of a Trump administration, this didn’t really justify a 35 percent increase in the value of the S&P 500 from November 2016 to September 2018.
The best answer I got was that investors and chief executives assumed that Trump was planning to do the stuff they wanted — the tax cuts, the deregulation — and that the rest of his campaign promises were just base-pandering rhetoric that would be quickly abandoned. Their belief seemed touchingly naive, even quaint. But also sincere and strongly held.
.. Which may solve the twin mysteries of boom and the bust: Wall Street believed that Trump was just playing erratic and impulsive for the cameras, but that behind the policy scenes, what they’d be getting was a normal Republican presidency, only maybe a bit more so. The current correction may simply reflect Wall Street’s belated realization that investors would be getting exactly what they’d seen on the stump: a man who substitutes reaction for planning, and angry tweets for policy.
One thing, of course, is totally unsurprising: that when those on Wall Street finally figured out who they were really dealing with, and prices slumped, the guy from the campaign stump was going to find a way to make it all worse.
Is there anyone who wants to hang with Donald Trump?
He’s not wanted.
Not at funerals, though the Bush family, to show class and respect for tradition, held their noses and made an exception.
Not in England, where they turned him into a big, hideous blimp.
Not by moderate Republicans, or at least the shrinking club with a tenuous claim to that label, who pushed him away during the midterms as they fought for their survival and clung to their last shreds of self-respect.
And not by a 36-year-old Republican operative who is by most accounts the apotheosis of vanity and ambition — and who just turned down one of the most powerful roles in any administration, a job that welds you to the president’s side and gives you nearly unrivaled access to his thoughts.
Nick Ayers didn’t see enough upside to the welding. He could do without those thoughts. He said no to becoming Trump’s next chief of staff, and this wasn’t just the latest twist in “As The White House Turns.”
It was, really, the whole story — of a president who burns quickly through whatever good will he has, a president who represents infinitely more peril than promise, a president toward whom a shockingly small and diminishing number of people in Washington feel any real affection, a president more tolerated than respected, though even the tolerance wanes.
.. He’s forever fixated on how wanted he is (“My crowds!” “My ratings!”), but what’s more striking is how unwanted he is. And that’s not merely a function of the crests and dips that every president encounters. It’s not really about popularity at all.
.. It’s about how he behaves — and the predictable harvest of all that nastiness. While other presidents sought to hone the art of persuasion, he revels in his talent for repulsion: how many people he attacks (he styles this as boldness); how many people he offends (he pretties this up as authenticity); how many people he sends into exile.
.. Careerists who would normally pine for top jobs with a president assess his temper, behold his tweets, recall the mortifications of Jeff Sessions and Rex Tillerson, and run for the hills. Trump sits at the most coveted desk in the world, but almost no one wants to pull up a chair.
.. What happened with Ayers, who is finishing a stint as Mike Pence’s chief of staff, speaks pointedly to the president’s diminished state. Bear in mind that Trump had already started telling people that Ayers would succeed John Kelly as chief of staff, so Ayers’s decision was doubly humiliating. Bear in mind who Ayers is: not just any political climber but someone whose every breath is focused on his enhanced glory, a trait frequently mentioned by Republicans who have watched his rise (and who sense in him more than a bit of Trump).
They still groan and titter about the blast email that he sent out, unsolicited, after he signed on to manage Tim Pawlenty’s 2012 campaign for the Republican presidential nomination. It crowed about all the riches in the private sector that he was passing over. It hinted that his services had been sought by Pawlenty’s competitors: Sorry, guys. It assumed a broad, edge-of-seat audience for the minutiae of his mulling and maneuvering. In fact there were news stories that mockedthe self-aggrandizement of his announcement.
.. At most other times, under most other presidents, someone like Ayers would jump at chief of staff, no matter the job’s infamous rigors. It catapulted such political heavyweights as Dick Cheney, James Baker, Leon Panetta and Rahm Emanuel to greater recognition and relevance.
.. So Jared Kushner and Ivanka Trump counted on Ayers’s interest and connived to shove Kelly out — he’ll leave by year’s end — so that they could shimmy Ayers in. They counted wrong. Ever clueless and oh so useless, they didn’t adequately factor in Trump’s toxicity, and the president now looks every bit as isolated as he is.
.. “Trump was left at the altar,”
.. Administration officials like Steven Mnuchin and Mick Mulvaney practically put out news releases to make clear that Trump shouldn’t ask them to be chief of staff. He has no Plan B, just B-list options like Matt Whitaker, the acting attorney general.
.. As leaders go, he has never been much of a magnet. He unequivocally romped in the Republican primaries, but since then? He got nearly 3 million fewer votes than Hillary Clinton did, a gap so remarkable that he had to claim a conspiracy of illegal voting to console himself. When he first filled his cabinet, he hardly had his pick of the litter.
Many top Republicans wanted no part of him. Some who did enter the administration agonized beforehand: Were they helping the country or indulging someone who didn’t deserve it?
When Barbara Bush died in April, it was clear to Trump that he shouldn’t travel to Texas to pay his respects. When John McCain died in August, Trump was told to skip the funeral.
The heads of countries that share America’s purported values (pre-Trump, at least) reproach and recoil from him. Prominent corporate leaders rebuke him, despite his administration’s business-friendly policies.
.. By one analysis of the midterms, the overall vote count for Democratic candidates for the House was 8.6 percentage points higher than for Republican candidates.
His wife takes public shots at him. Old friends tattle to prosecutors; new friends don’t exist. Talk about a twist: He sought the presidency, as so many others surely did, because it’s the ultimate validation. But it has given him his bitterest taste yet of rejection.