For years, Trump’s anti-tax-return panacea has been his claim that he will not release his IRS history because he is under audit. Last Friday, Treasury Secretary Steve Mnuchin and IRS Commissioner Charles Rettig stood with the president, defying a subpoena from the House Ways and Means Committee to supply the past six years of Trump’s personal and business tax returns. Mnuchin defended his action, claiming that there was no “legitimate legislative purpose” for the committee to see the documents.
But that stalling tactic may have run its course. According to a confidential Internal Revenue Service legal memo obtained by the Washington Post, the agency is required to hand over the president’s tax returns. The ten-page memo states that the disclosure is “mandatory” and that federal law “does not allow the Secretary to exercise discretion in disclosing the information provided the statutory conditions are met.”
The document — written by a lawyer in the Office of Chief Counsel in the fall of 2018 — also directly rejects Mnuchin’s argument for ignoring the subpoena. Though other Congressional committees “must include a purpose for their request for returns and return information when seeking access,” the House Ways and Means Committee, along with the Senate Finance Committee and the Joint Committee on Taxation, does not have to provide a reason for requesting tax information.
“The memo writer’s interpretation is that the IRS has no wiggle room on this,” David Hemel, a professor at the University of Chicago Law School, 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.” In a statement to The Hill, the IRS said that the “memo in question is a draft background paper that was never finalized” and “is not the official position of the IRS.”
The memo also provides Trump with his likely next step: The “only basis” for the IRS to reasonably ignore a Ways and Means subpoena would be “the invocation of the doctrine of executive privilege,” which the president has already done for his financial records and the unredacted Mueller report. But the IRS draft also states that the law “might be read to preclude a claim of executive privilege,” a legal bind that, if enacted, could mean Trump is out of moves.