Trump’s attorney doesn’t know what he is talking about on Trump tax returns

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I explained the law on this last week, ‘Follow the Money’ – Congress requests Trump tax returns (Updated):

I covered this earlier this year, ‘Follow the Money’ – Congress needs to see Trump tax returns, but now House Ways & Means Committee Chair Richard Neal (D-MA) has finalized his demand letter under Code sec. 6103(f):  Upon written request by either the Chairman of either the House Ways and Means Committee or the Senate Finance Committee, the Treasury Secretary “shall furnish such committee with any return or return information specified in such request.”

In legal parlance, “shall” is an imperative command; it is a ministerial duty that one is required to do. There is no discretion to comply.

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It is a federal crime for Donald Trump to instruct the IRS to not comply with this congressional request. 26 U.S. Code § 7217. Prohibition on executive branch influence over taxpayer audits and other investigations, h/t Lawrence O’Donnell who explains this rarely invoked federal law (rare, because few presidents are stupid enough to actually do this). Video Link.

So Trump hired yet another attorney who sent a letter telling the Treasury Department not to comply with Chairman Neal’s request until they get an advisory letter from the Office of Legal Counsel at the Justice Department telling them what to do. Trump lawyers issue letter fighting tax return request, Read: Trump lawyers send letter to Treasury Dept pushing back on tax return request.

The plain language of the statute is clear and unambiguous, there is no need for OLC legal interpretation. The statute has never been successfully challenged, ever. This is simply giving Trump appointees the opportunity to commit a federal crime on behalf of Donald Trump to instruct the IRS to not comply with this congressional request. 26 U.S. Code §7217.

Acting White House Chief of Staff Mick Mulvaney told “Fox News Sunday” in an exclusive interview that Democrats will “never” see President Trump’s tax returns. This is a reversal of numerous Trump promises to the American people to produce his tax returns. Like Donald Trump, his associates are full of bluster, bullying, and bullshit.

Lawrence O’Donnell, who was a Senate aid to the Senate Finance Committee at one time — so he knows what he is talking about — explains why Trump’s new attorney doesn’t know what he is talking about, and why Chairman Neal will eventually get Trump’s tax returns. Video Link.

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Transcript:

Donald Trump has a new lawyer. And that lawyer is trying to do something that has never been done before. And the reason it’s never been done before is that the law is very clear about the case that President Trump has hired his new lawyer to handle. And it may be the case that Donald Trump fears more than any other thing that has happened to him since he took the oath of office.

The president’s new attorney is a private lawyer who does not work in the White House. He is not on the government payroll, he is a private lawyer hired by Donald Trump to try to stop House Ways and Means Committee Chairman Richard Neal from legally obtaining Donald Trump’s tax returns. And as we’ve been discussing at this hour for the last two nights, the chairman of the House Ways and Means Committee has the unique power written into law that allows him to obtain anyone’s tax returns. And obtaining public official’s tax returns, including the president, is one of the things that this law was actually designed to do. The law allows the chairmen of the tax writing committees in the House and in the Senate to obtain any tax returns that they want to see. And no one has ever successfully blocked them from doing that, ever.

The president’s new lawyer, William Consovoy, wrote a three page letter today trying to block Chairman Neal’s demand for the Trump tax returns. It could have been a much shorter letter, if anyone had ever successfully blocked one of the tax writing committees from obtaining a tax return, because if that had ever happened the president’s lawyer could simply cite that case, claim it applies here, and redone with it. Instead, the president’s lawyer wrote a letter filled with irrelevant references, political argument, and faulty legal scholarship. In other words, the president has hired yet another lawyer who literally doesn’t know what he is talking about.

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Because like most people, most of the news media is usually intimidated by lawyer’s letters, you should brace yourself for days of news coverage in which the president’s lawyer’s letter will be taken much more seriously than it should be. It takes it’s place among the long list of lawyer’s letters sent on behalf of Donald J. Trump that have absolutely no legal basis.

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The three page letter that the president paid for today must have been much cheaper, and even though it has no legal basis, this one — this one is not a joke, because it was addressed to a Trump appointee, Brent McIntosh the general counsel of the U.S. Department of Treasury. And the letter asks the general counsel of the Treasury to tell the Treasury Secretary to not allow the IRS Commissioner to deliver the Trump tax returns to Chairman Neal. (The IRS is technically part of the Treasury Department, and so it is technically under the jurisdiction of the Treasury Secretary, although the IRS is usually allowed to operate as a completely independent entity.)

The letter says “The IRS should refrain from divulging the requested information until it receives a formal legal opinion from the Justice Department’s Office of Legal Counsel.” Which brings us to another Trump appointee, Attorney General William Barr. And so this becomes another test of what Attorney General William Barr is willing to do for Donald Trump. But it becomes a test of Donald Trump’s Commissioner of the IRS who has absolutely no legal basis whatsoever for not turning over this tax returns by Wednesday of [this] week as Chairman Neal has demanded.

And so all of the Donald Trump appointees involved, Treasury Secretary Steve Mnuchin, Brent McIntosh, General Counsel of the Treasury, Attorney General William Barr, and IRS Commissioner Charles Rettig, might all be staring at Donald Trump’s lawyer’s letter tonight, right now, trying to see if there is any legal hook that they can possibly hold onto as an excuse for not complying with very clear law. Or they might not. They might all be honorable men, who happen to be appointed by Donald Trump, who take their oaths of office very seriously, and recognize that the president’s lawyer’s letter is a legal joke to be dismissed as soon as they read it. Maybe.

The lawyer’s letter says “requests for tax returns and return information must have a legitimate legislative purpose.”

Chairman Neal’s letter demanding the tax returns says “Consistent with its authority, the Committee is considering legislative proposals and conducting oversight related to our Federal tax laws, including, but not limited to, the extent to which the IRS audits and enforces the Federal tax laws against a President … it is necessary for the Committee to determine the scope of any such examination and whether it includes a review of underlying business activities required to be reported on the individual income tax return.”

And that is why the Chairman is asking for Donald Trump’s tax returns instead of Barack Obama’s tax returns, because Donald Trump is the only president who has significant “underlying business activities.” The Chairman wants to know whether the automatic IRS audit of presidential tax returns includes Donald Trump’s business tax returns.

The presidents lawyers letter claims that Chairman Neal is only asking for Donald Trump’s tax returns “because he is a political opponent.” The letter makes no attempt to prove that, and the letter does that classically bad lawyer thing of saying that “the Chairman has no legitimate committee purpose for requesting the President’s tax returns, and then immediately says, “even if the Ways and Means Committee has a legitimate purpose for requesting the President’s tax returns, that’s not the real reason” Richie Neal is doing this. The letter simply says that the president’s lawyer does not believe the reasons that Richie Neal gave for demanding the President’s tax returns.

The President’s lawyer’s letter also includes this glaring mistake. It says “the President hasten greater authority than Congress to obtain individuals’ tax returns.” That is not true. The President does not have authority to obtain individuals’ tax returns that is more powerful than the Congress’. It is actually much more limited than committee chairmen’s authority to obtain individuals’ tax returns.

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I for one have no doubt who is going to win. Richie Neal is going to get Donald Trump’s tax returns.

Lawrence O’Donnell’s guest was George Yin, the former chief of staff of the Joint Committee on Taxation, an expert on Code sec. 6103(f).

O’Donnell: George Yin, let me start with you. You’ve read the president’s attorney’s letter about this, you’ve also written the definitive article about this law (see, Congress has the power to obtain and release Trump’s tax returns). Give us your review of the president’s lawyers letter and do you see any meriting it.

George Yin: I completely agree with you. The letter really didn’t say anything useful. I thought Chairman Neal’s letter request lays out a couple of reasons that would qualify as legitimate legislative purposes, and one of the ones that is laid out I think is particularly strong, which is to lend oversight over the IRS’s audit of the President’s returns. The President has indicated repeatedly that his returns are under audit, but the fact is there have been problems with that in the past. The first audit by the IRS of President Nixon’s returns, actually the IRS gave President Nixon a complete clean bill of tax health as a result of that audit, and even sent President Nixon a letter complimenting on the care with which he prepared those returns. But on later audits of the same returns, one by the nonpartisan staff of the Joint Committee on Taxation and one by the IRS again, we discovered, in fact, that President Nixon owed almost an additional half a million dollars of additional tax and interest. So there is an inherent conflict of interest when the IRS is asked to audit essentially its boss. And it’s absolutely the responsibility of Congress and the Ways and Means Committee to exercise its oversight responsibility to double-check that the audit is being done appropriately, or whether there is any funny business going on. So I think that the Chairman is very smart in laying out that rational, as well as others, for tis request.

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O’Donnell: George Yin, I want to talk about the law that governs tis, it refers to, it uses the phrase “the Secretary shall furnish the tax returns,” meaning the Secretary the Treasury. And that’s simply because of the organizational chart where the IRS is technically with the Treasury Department. Historically though ,these requests have always been handed directly by the IRS Commissioner. Isn’t that the precedent we have for it, and ins’t that why Chairman Neal addressed his letter directly to the IRS Commissioner?

George Yin: Well, yeah, you’re right. The Commissioner of theIRS has more direct custodial responsibility over the returns. Obviously people directly under him are thrones who actually have the material that the Chairman has requested. So it makes some sense to direct the request there. But You’re right. The statute does indicate that the Secretary of the Treasury “shall” furnish it. So ultimately the response, assuming that there is a response, the response of the information requested, would presumably come from Secretary Mnuchin.

O’Donnell: And so George, let me stay with you on the implications of the President’s lawyer’s letter. He’s addressing it to the Treasury Department, to the [general] counsel at Treasury Department. He makes a reference to asking the treasury Department to wait until the Justice Department basically tells them what to do. What’s your reaction to that part of it?

George Yin: Well, I don’t really see any grounds for that at all. Again, the law is very clear. And I thought that Chairman Neal’s request was very smart also in that it was quite targeted. So there’s a limited amount of information that’s being requested. And I would think that, depending on how difficult it is to assemble it, it could be forwarded very quickly. I don’t really see the need for the Justice Department interpretation. The law is really pretty straightforward.

The deadline is Wednesday, April 10. Stay tuned.