I recently testified in the House Judiciary Committee that the Congress must challenge the refusal of the Trump Administration to turn over certain records and to bar certain witnesses from oversight investigations. While I also disagreed with some of Congress’s actions, the Trump Administration has cannot withhold material from oversight authority on the basis of undeclared privileges or ill-defined objections. This is the case in the refusal to turn over tax records demanded by Congress. As I stated earlier, the House has made only generalized claims of a legislative purpose for such records. Nevertheless, the law clearly favors Congress in seeking such material. Notably, the Trump Administration has not claimed executive privilege but only that the Committee lacks a legislative purpose. That is not enough. Now, it appears that the Administration was warned by its own confidential Internal Revenue Service legal memorandum that it would be violating the law by withholding the records without an executive privilege claim. It ignored the legal memorandum and refused the congressional demand.
The memo, obtained by The Washington Post, concluded that he disclosure of tax returns to the committee “is mandatory, requiring the Secretary to disclose returns, and return information, requested by the tax-writing Chairs.” Nevertheless, Treasury Secretary Steven Mnuchin simply refused to turn over the material on the basis that the House lacks a legislative purpose for demanding them.
The IRS stated what some of us have said from the outset: the federal law does not state conditions for this demand and does not die the Secretary discretion to refuse such demands when properly made by a congressional committee: “[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,” it says. It adds 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.”
Notably, this memo was completed months before Mnuchin made his decision to refuse the demand of the House Ways and Means Committee.
If the Administration is simply seeking to delay investigations, it could achieve that goal but will do so at the cost of creating damaging precedent against the Executive Branch for future presidents.
Here is the memo: IRS Memorandum