Leaked IRS memo says IRS can't hide Trump's taxes from Congress

Trump has gone to great lengths to hide his taxes, but even the IRS thinks he should have to disclose them to Congress.

The Washington Post reported Tuesday that it obtained a confidential draft legal memo written by an unnamed attorney at the IRS. That memo says that, barring Trump invoking executive privilege, his tax returns must be given to the House Ways and Means Committee.

The memo doesn’t come right out and say that it was written in anticipation of Trump instructing Treasury Secretary Steven Mnuchin to refuse to release the returns, but it is clear that is what underpins the opinion. It explicitly says the law “does not allow the Secretary to exercise discretion” and that Mnuchin’s obligation to disclose return information is not affected if the committee fails “to state a reason for the request.”

That strikes at the heart of Mnuchin’s refusal, which has been to say that the Ways and Means Committee “lacks a legitimate legislative purpose” for the request for Trump’s taxes.

In what may have been an attempt to give Trump some cover, the memo does state that tax returns might be protected if executive privilege was invoked.

There are two problems with that. First, Trump couldn’t claim executive privilege for taxes that predate him becoming president, as the privilege only attaches to members of the executive branch. Next, executive privilege, as the memo explains, is meant to cover information such as “opinions, recommendations, and advice generated in the process of formulating policies and making decisions.” That doesn’t apply to Trump’s personal taxes.

The memo points out that there is at least one instance in which may be permissible for the IRS to refuse to provide a tax return to Congress. There’s an informal agreement between the IRS and the House Ways and Means Committee that if the return requested is part of an open criminal investigation, the IRS could decline to provide it. This is so the IRS’ “criminal enforcement efforts” aren’t disrupted. It seems unlikely that Trump wants to claim he’s the subject of a criminal investigation to keep his taxes secret.

As the Post points out, this memo is “exposing fissures” in the executive branch. Mnuchin, as head of the Treasury, has been relying on advice from the Department of Justice to say he isn’t required to provide the returns. Here, though, the agency directly responsible for tax returns has said they must be turned over.

It is unlikely that the existence of this memo will change Mnuchin’s — or Trump’s — mind, but it is becoming tougher and tougher for anyone to say that this refusal is legally justified.

Published with permission of The American Independent Foundation.