Confidential IRS memo says agency must turn over Trump's tax returns

Steve Mnuchin claims he isn't violating the law in hiding Trump's returns — but IRS lawyers say otherwise

By Igor Derysh

Managing Editor

Published May 22, 2019 5:55PM (EDT)

Steve Mnuchin (AP/Jacquelyn Martin)
Steve Mnuchin (AP/Jacquelyn Martin)

A confidential Internal Revenue Service legal memo obtained by the Washington Post says that tax returns must be turned over to Congress unless the president asserts executive privilege.

The memo contradicts the administration’s claims that it does not have to turn over President Trump’s tax returns. Trump, who has repeatedly refused to make his tax returns public, has not invoked executive privilege. Treasury Secretary Steven Mnuchin has claimed he will not turn over the tax returns because the congressional request does not serve a “legislative purpose.”

The law, however, is clear. The obscure 1924 law says that the Treasury “shall furnish” any requested tax returns to the House Ways and Means Committee and does not provide any way for the agency to refuse the request.

The IRS memo similarly states that turning the tax returns over to the committee “is mandatory, requiring the Secretary to disclose returns, and return information, requested by the tax-writing Chairs.”

The 10-page memo goes on to say that the law “does not allow the Secretary to exercise discretion in disclosing the information provided the statutory conditions are met.”

“[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,” the memo says, adding 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 was written by an attorney in the IRS Office of Chief Counsel, the agency told the Washington Post, but does not represent the agency’s “official position.”

The memo’s release comes days after Mnuchin rejected a subpoena from the Ways and Means Committee to turn over the tax returns, setting up a court battle.

A spokesman for Mnuchin told the Post that the secretary never saw the memo and insisted that it did not undermine his justification for refusing to provide the documents.

At a Wednesday House Financial Services Committee hearing, Mnuchin similarly claimed that the memo was just a “draft” and did not represent the administration’s position.

“I’ve been advised I am not violating the law,” he claimed.

Mnuchin vowed to find the person behind the memo. “We're trying to find out who wrote the memo, where it came from, when it was and why it wasn't distributed," he said.

Mnuchin told the committee that Justice Department lawyers told him that the Treasury should not release the returns and that it would be “unlawful” for him to do so.

Legal experts disagreed, pointing to the fact that the law could not be more clear. “The memo writer’s interpretation is that the IRS has no wiggle room on this,” University of Chicago law professor Daniel Hemel told the Post. “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.”

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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