The Post has published a previously undisclosed memo written by someone in the Internal Revenue Service’s legal office, contradicting the position the IRS and the Treasury Department are currently taking as they attempt to keep President Trump’s tax returns hidden from the public. While it doesn’t mention Trump by name, its obvious purpose is to explain the relevant law that governs the effort to keep his returns from public view.
And what the memo says is that the administration doesn’t have a leg to stand on:
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.
What does this tell us? That as has happened so many times, the professional staff in an executive branch agency is attempting to carry out their tasks according to the law, which brings them into direct conflict with the political hacks Trump has appointed to run their agency.
In this case, the hacks are Secretary Mnuchin and IRS Commissioner Charles Rettig. You’re probably not familiar with Rettig; before getting this job he was a Beverly Hills tax attorney who specialized in helping clients fight the IRS. Putting him in charge of the nation’s tax collection agency is kind of like, oh I don’t know, putting a coal lobbyist in charge of the EPA. Which Trump also did. Rettig almost certainly got the job because in 2016 he wrote an op-ed arguing that Trump shouldn’t release his tax returns.
On Wednesday morning, Mnuchin testified before the House Financial Services Committee, and said emphatically that he has never discussed the issue of Trump’s tax returns with the president or anyone else in the White House. But when asked whether he ordered Rettig not to comply with Congress’ demand for Trump’s returns, Mnuchin acted confused and said he didn’t understand the question.
The truth is that neither Mnuchin nor Rettig has to be told to protect Trump’s tax returns like they’re safeguarding the nuclear codes. These people know exactly why they’re there, and they know what they’re supposed to do.
All they have to do is watch what has happened with the Justice Department to understand that when Donald Trump puts you in office, your single most important purpose is to protect Donald Trump. And judging by his words and behavior, Trump believes that if the public saw his tax returns like they have for every other president since Nixon, it would be catastrophic for him.
We should be clear that the position Mnuchin is taking in keeping Trump’s returns hidden — that Congress doesn’t have a legitimate legislative purpose in demanding them and therefore he isn’t going to turn them over — is unadulterated nonsense. The Ways and Means Committee doesn’t have to articulate any legislative purpose at all in obtaining the returns. It has broad oversight powers, and the specific law in question states that when the chairman of the committee demands any American’s returns, the Secretary “shall” furnish them. Not he may, or he might, or he can if he wants to, but he “shall” turn them over.
The IRS legal memo (which you can read in full here) makes this clear:
Unlike section 6103(f)(3), subsections (f)(1) and (2) do not require the Ways and Means and Finance Chair or JCT Chief of Staff to include a reason or purpose for the request. Therefore, the Secretary’s obligation to disclose return and return information would not be affected by the failure of a tax writing committee or the JCT to state a reason for the request.
So outside of a few narrow cases like ongoing criminal investigations, there is simply no argument about this. The only other circumstance in which the IRS might be able to refuse, the memo suggests, would be if executive privilege were to be invoked. But even that is a long shot at best, since executive privilege is meant to safeguard things like the advice the president gets when making important policy decisions. “The president doesn’t want the public to see where he gets his money” is not a legitimate reason to invoke executive privilege.
But in his testimony today, Mnuchin essentially portrayed this all as a simple disagreement that will soon be resolved by the courts. Congress says one thing, the executive branch disagrees, and the wise men in robes will sort it all out.
Yet that too is a case where Trump is counting on his own appointees to protect him. There’s a 5-4 conservative majority on the Supreme Court, and he’s pretty sure those five conservatives, two of whom he appointed, will do what they’re supposed to do.
So if it all works out for Trump, his hacks in the executive branch will defy the law, and then his hacks on the Supreme Court will say the law doesn’t matter. It’s a nice tight circle.