Secretary Mnuchin Defies Law to Deny House Request for Trump’s Tax Returns

Donald Trump’s Treasury Secretary, Bond villain Steve Mnuchin, on Monday told House Democrats he would not furnish President Trump’s tax returns despite their legal request, pursuant to the Trump administration’s policy of “total obstruction” of Congress. I would point out that Mnuchin is not even the proper respondent, that is IRS Commissioner Charles Rettig. Mnuchin rejects Democrats’ demand to hand over Trump’s tax returns:

Mnuchin, in a letter to House Ways and Means Committee Chairman Richard Neal (D-Mass.), said he had consulted with the Justice Department and that they had concluded that it would not be lawful for the Trump administration to turn over the tax returns because of potential violations of privacy.

In his letter, he said that “In reliance on the advice of the Department of Justice, I have determined that the Committee’s request lacks a legitimate legislative purpose, and…the Department is therefore not authorized to disclose the requested returns and return information.”

He said the Justice Department plans to make public its legal reasoning in finding that Mnuchin didn’t have to furnish the requests. Alexei Woltornist, a spokesman for the Department of Justice, referred a request for a copy of the department’s opinion to the Treasury Department.

UPDATE: Here is Secretary Mnuchin’s Response to Chairman Neal (.pdf).

Alright, let’s plow through this pile of bullshit. As tax expert David Cay Johnston explained in my previous post, Treasury Secretary and IRS Commissioner are in legal jeopardy (excerpts):

Under Section 6103 of our tax code, Treasury officials “shall” turn over the tax returns “upon written request” of the chair of either congressional tax committee or the federal employee who runs Congress’s Joint Committee on Taxation. No request has ever been refused[.]

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There are no qualifiers in Section 6103 that shield Trump from delivering, in confidence, his tax returns to Congress. No wiggle room at all.

Another provision in our tax code, Section 7214(a), provides that “Any officer or employee of the United States acting in connection with any revenue law of the United States… who with intent to defeat the application of any provision of this title fails to perform any of the duties of his office or employment… shall be dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years or both.”

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The good-conduct provisions of the tax law are as broad as they are severe.  Significantly, it doesn’t just affect IRS auditors and collections officers. It applies to any federal employee—which means Trump as well as Mnuchin and Rettig—who “fails to perform any of the duties” they are assigned.

Note: This is another crime to be added to Trump’s articles of impeachment.

It also applies to any federal employee “who conspires or colludes with any other person to defraud the United States; or who makes opportunity for any person to defraud” the government. This provision could hit Mike Mulvaney, the acting White House chief of staff and Trump’s budget director, given his reckless statements on Fox News, which some call Trump TV.

The law covers official inaction, too. Anyone who “omits” his duty “shall” be removed and may be prosecuted as a felon.

So any attorney at the Department of Justice and Treasury who foolishly signed their names to this bullshit legal advice to Mnuchin can be charged as well.

This is not going to happen, however, so long as the Trump crime family regime remains in power.

So how does Congress get Trump’s tax returns now? George K. Yin, Professor of Law and Taxation at the University of Virginia School of Law and a former chief of staff of the congressional Joint Committee on Taxation explains at POLITICO, How to Get Trump’s Tax Returns—Without a Subpoena:

According to news reports, if Mnuchin continues to resist, Neal might issue a subpoena to get Trump’s tax information. Neal, however, would be better off not issuing a subpoena but instead suing Mnuchin for his failure to comply with the law underlying Neal’s request. Why? While the purpose behind Neal’s request—the central disagreement between the two men—is relevant to enforce a subpoena, it might not be relevant for the law Neal is invoking.

In requesting Trump’s tax returns, Neal is relying on a 1924 law (now found in 26 USC 6103(f)(1)), passed in the wake of scandals such as Teapot Dome, that explicitly authorizes the House Ways and Means Committee chief to obtain any taxpayer’s tax return information by asking for it in writing. The law is clear and direct, stating that the Treasury secretary “shall furnish” any information requested. The plain language places no condition on Neal’s action, says nothing about the need for any specific purpose or justification and doesn’t enumerate any circumstances under which Mnuchin may decline to comply.

Since the meaning of this law, to my knowledge, has never been interpreted by a court, I have previously written that the committee, as a precaution, should have a legitimate legislative purpose to request tax information. I arrived at that conclusion based on analogous law involving the enforcement of congressional subpoenas: Because a subpoena ordinarily furthers Congress’ general investigative power, the courts have not unreasonably concluded that enforcement of a subpoena depends on whether the purpose of the investigation is consistent with one of Congress’ constitutional responsibilities. Neal has taken that precaution and stated a purpose—congressional oversight—that clearly satisfies this requirement. Even Mnuchin seems to concede this point by contending that Neal’s stated purpose isn’t his real one.

If Mnuchin continues to refuse the request for Trump’s tax information, Neal has two paths he could take. One—invoking Congress’ general investigative power and issuing a subpoena to get the tax information—will present the question of what Neal’s purpose is. The other—suing Mnuchin for not complying with the 1924 law—might not, based on both the language and background of the law.

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[T]he 1924 law Neal is relying on has remained essentially unchanged since its enactment. Its proper interpretation, then, should turn on its clear language and Congress’ intent when it was created. In this case, as it happens, both the letter and the intent of the law lead to the same conclusion: Congress is entitled to the president’s tax information, no questions asked.

So, if Congress wants to get those returns, its next move should be to sue Mnuchin based on his failure to comply with the 1924 law, rather than to seek the information through a subpoena. At worst, a court would require Neal to have a legitimate legislative purpose—the same condition that applies to enforce a subpoena. But a court might well decide, based on the language and history of the 1924 law, that no purpose is needed at all. Congress has a strong case. A suit on the law will be a good test to determine whether Trump has captured the judiciary, as he apparently believes.

Pro Tip: I would add a count for a writ of mandamus to the complaint, i.e., an order by a court to a lesser government official to perform an act required by law, which he has refused or neglected to do. Congress could file its motion for a writ of mandamus once an answer to the complaint has been filed. This would greatly speed up the process.

If George Yin and David Kay Johnston are correct — and they are — the court would have no choice but to grant the motion for a writ of mandamus. This is a purely ministerial act for which there is no discretion to comply by the IRS or Treasury.

Congress could pursue the dismissal from office of the obstructors under tax code Section 7214(a) later in the case.