A confidential Internal Revenue Service legal memo written last fall says the agency must turn over the president’s tax returns to Congress unless he asserts executive privilege. The 10-page IRS memo was obtained and reviewed by The Washington Post.
President Trump has refused to hand over his tax returns to the Democratic-led House Ways and Means Committee, but the president has not invoked the doctrine of executive privilege.
Trump administration Treasury Secretary Steven Mnuchin argued that Democrats’ request to obtain the documents “lacks a legitimate legislative purpose.” For this reason, Mnuchin said he is “not authorized to disclose the requested returns and return information.”
However, the IRS memo says otherwise, instead stating that the disclosure of Trump’s tax returns to the Committee “is mandatory, requiring the Secretary to disclose returns, and return information, requested by the tax-writing Chairs.”
According to the IRS, the law “does not allow the Secretary to exercise discretion in disclosing the information provided the statutory conditions are met.”
In the event that Trump does invoke executive privilege to avoid handing over his tax returns, the president could be asked to justify it. But some experts say the law can be interpreted as denying the president’s right to invoke executive privileges to deny a subpoena.
“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. “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.”
When reached for comment by the Post, a spokesperson for the Treasury Department claimed that the department had never received a copy of the memo. The spokesperson, like Mnuchin, argued that the IRS would not be required to turn the information over to Congress if there was no legislative purpose.
Officials in the department have extensively discussed the issue of Trump’s tax returns. One official said that Trump has already determined his preferred outcome. “Now it’s up to us to try to justify it.”
More must-read stories from Fortune
—Nike, Adidas slam tariffs in open letter to Trump
—Can Roe v. Wade be overturned?
—Breaking up Facebook is quickly becoming a 2020 campaign issue
—What’s behind the U.S. legal immigration slowdown?
—Listen to our new audio briefing, Fortune 500 Daily
Get up to speed on your morning commute with Fortune’s CEO Daily newsletter.