The Treasury Department said Wednesday that a leaked IRS memo interpreted by some as saying that the agency must release President Donald Trump’s tax returns to Congress has been misinterpreted, and that previous guidance barring making the documents public remains in force.
The existence of the memo was first reported by The Washington Post, which published it online Tuesday night. It states that the law “does not allow [Treasury Secretary Mnuchin] to exercise discretion in disclosing the information provided the statutory conditions are met” and specifies that his argument that Congress has no legislative reason for demanding the returns is flawed.
“[The] only basis for the agency’s refusal to comply with a committee’s subpoena would be the invocation of the doctrine of executive privilege,” it reads.
On Wednesday, a Treasury spokesperson said in an email that the department had not “seen any such memo” but maintained the analysis therein would not undermine previous guidance from the Justice Department’s Office of Legal Counsel (OLC).
“Neither the Secretary nor senior Treasury leadership has seen any such memo,” the spokesperson said. “Regardless, the analysis described to us does not appear to address the constitutional impediments preventing Treasury from disclosing the requested tax information. The Justice Department’s Office of Legal Counsel has reviewed those Constitutional issues and advised the Treasury that it may not produce the requested private tax return information.”
The department issued a similar response to the Post on Tuesday, stating that Mnuchin was not beholden to the newly unearthed memo and was simply “following a legal analysis from the Justice Department that he ‘may not produce the requested private tax return information’.”
Rep. Richard Neal (D-MA), chairman of the House Ways and Means Committee, previously requested the Treasury Department turn over six years of Trump’s tax returns as part of a larger inquiry into the president’s finances, giving officials an initial deadline of April 10 to produce the documents. Mnuchin failed to meet that and all subsequent deadlines, most recently ignoring a subpoena for the documents.
According to Mnuchin, the Treasury Department conferred with Justice Department lawyers on the issue, and was instructed that the committee “lacked legitimate legislative purpose” to request the returns.
“[The] Department is therefore not authorized to disclose the requested returns and return information,” Mnuchin wrote.
During a hearing before the House Financial Services Committee earlier on Wednesday, the secretary addressed that OLC guidance once more, reiterating the Treasury Department’s stance that the recently discovered IRS memo — which he maintained he had not seen — did not invalidate the previous instruction.
“To the best of my recollection I don’t ever recall seeing this memo. The first I heard of this was when we got an inquiry from The Washington Post,” he said.
“What I’ve been briefed on … is this issue is different than the legal analysis that we’ve done,” he continued. “Of course we will look at it and make sure, but there’s no smoking gun here. We did a very thorough legal analysis with the Department of Justice. This goes to the courts, the courts will decide and determine.”
Legal experts have said the OLC’s claim that Mnuchin has no reason to release Trump’s taxes is shaky at best, and that the arguments outlined in the memo are strong.
“The memo writer’s interpretation is that the IRS has no wiggle room on this,” Daniel Hemel, a professor at the University of Chicago Law School, told the Post on Tuesday. “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.”
Instead, Hemel told the Post, the memo “suggests a split over Trump’s returns between career staffers at the IRS and political appointees at that agency and the Treasury Department.”
It’s unclear whether the memo will sway Treasury’s top brass on the issue, or if it will cause Trump to invoke executive privilege, as the memo states, to keep his returns private.
During Wednesday’s hearing Mnuchin said he hoped the courts would rule on the issue correctly.
“I would hope — we all hope — that we get to the right conclusion on what the right law is here,” he said.