Contrary to popular opinion, the belief that Mnuchin has any authority over the release of taxation returns to the Ways and Means Committee is mistaken. Media and their parade of variegated pundits are without any Treasury experience and therefore have no idea why they are wrong or even that they are wrong. But wrong they most definitely are.
Here’s the first and most glaringly obvious clue: Chairman Richard Neal addressed his request, per the requirements of the Internal Revenue Code section 6103(f)(1), to IRS Commissioner Charles Rettig, not Treasury Secretary Mnuchin. Why, I have to wonder, did so few people ask themselves why? Why did Neal not address the request to that pompous ass, Mnuchin?
That was my first question, and subsequent research led me to a very interesting answer.
You could be forgiven for thinking Mnuchin was the ultimate authority in determining whether or not to release tax returns to the House tax-writing committee because, after all, it is there in the wording of Internal Revenue Code section 6103(f)(1), page 3163 (bold mine):
(f) Disclosure to Committees of Congress
(1) Committee on Ways and Means, Committee on Finance, and Joint Committee on Taxation
Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request...
There it is in black and white, and everyone concurs that this single word denotes the Secretary of the Treasury. Yet Chairman Neal, who referenced this 1924 law in his letter, did not address it to the Secretary.
Fortunately, someone at The Washington Post asked the same question I did and went looking for the answer. But they didn’t approach a pundit or lawyer, they sought out a former Treasury Secretary because of course, who better to ask?
That former Secretary was Lawrence H. Summers, who was Treasury Secretary from 1999 to 2001 and an economic adviser to President Barack Obama from 2009 to 2010. He not only had the answer but wrote The Washington Post article and what a revelation that was!
It turns out that the whole issue is predicated on a long-standing Treasury delegation order:
As best I can determine, the appropriate response of the treasury secretary is very clear: Under a long-standing delegation order, the secretary does not get involved in taxpayer-specific matters and has delegated to the IRS commissioner as follows: “The Commissioner of Internal Revenue shall be responsible for the administration and enforcement of the Internal Revenue laws.”
So, the IRS Commissioner is the one with the responsibility for Internal Revenue laws which, of course, includes Internal Revenue Code section 6103(f)(1). That explains why Chairman Neal addressed his request to Charles Rettig. The time taken by himself and his staff to thoroughly research the matter was not time wasted.
However, Mnuchin seems ignorant of his own Department’s delegation order which requires that “the secretary does not get involved” because involved he did get, from the get-go. Trump’s flunky Mick Mulvaney also inserted himself into the public conversation but then no-one thought he had any authority with regards to the matter so he’s being treated more as a curiosity than anything.
So back to pompous ass, Mnuchin. Since this delegation order is a long-standing Treasury Secretary delegation order, then surely he would have the authority to revoke it, yes? And yes he does, but…
Moreover, this is not a delegation that is readily revocable. Federal law provides that if the secretary determines not to delegate a power, such determination may not take effect until 30 days after the secretary notifies the tax-writing (and other specified) committees.
Again Mnuchin appears to be completely ignorant of Internal Revenue Code section 7803(a)2, specifically the lines immediately below subparagraphs (A) and (B) which contain this little nugget:
If the Secretary determines not to delegate a power specified in subparagraph (A) or (B), such determination may not take effect until 30 days after the Secretary notifies the Committees on Ways and Means, Government Reform and Oversight, and Appropriations of the House of Representatives and the Committees on Finance, Governmental Affairs, and Appropriations of the Senate.
That confirms what Summers wrote. Yet the current Treasury Secretary is obviously clueless because he hasn’t provided 30 days notice to anyone, much less notified them that he intends revoking the delegation order. Therefore, the long-standing delegation order continues to stand.
Given that ignorance is not a defense, what can be said about Mnuchin inserting himself into the matter to the extent that he has ordered the IRS Commissioner not to fulfill Chairman Neal’s request? Lawrence Summers wrote:
So for the secretary to seek to decide whether to pass on the president’s tax return to Congress would surely be inappropriate and probably illegal.
Hah! Legal jeopardy could not happen to a more deserving pompous ass.
I’m sure too that Chairman Neal is well aware of Mnuchin’s misconduct and that his committee’s lawyers prepared in advance for this contingency. The next move will be up to them and it will be interesting to see.
There’s a couple of side issues which need addressing too. One concerns criticism of Chairman Neal sending a letter to the IRS Commissioner instead of a subpoena. Neal did so because he was following the letter of the law:
(bold mine)
(f) Disclosure to Committees of Congress
(1) Committee on Ways and Means, Committee on Finance, and Joint Committee on Taxation
Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives…
Neal is acutely aware that he will have to take the IRS Commissioner to court (and possibly Mnuchin as well) so he must stick rigidly to the letter of the law because that is going to be a critical point in the forthcoming trial.
The second issue concerns the misconception that the Ways and Means Committee has the authority to make Trump’s tax returns public once they get hold of them. But that’s not going to happen…
(emphases mine)
(f) Disclosure to Committees of Congress
(1) Committee on Ways and Means, Committee on Finance, and Joint Committee on Taxation
...any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.
Trump will never give his consent to making these returns public.
However, there’s at least two ways in which Trump’s tax records, or part thereof, may become public. The first is the possibility that all or part of those records become evidence in a future trial.
The second concerns an investigation by the House Committee on Oversight and Government Reform. On Monday April 15, Chairman Elijah Cummings will issue a friendly subpoena to Trump’s accounting firm, Mazars USA, for Trump’s financial statements. (NB A friendly subpoena is one that is specifically requested by the recipient to cover them legally before they hand over information to a congressional committee.) Because these tax records will be coming from a private company, they are not covered by the Internal Revenue Code disclosure restraints and therefore might be subject to public release if no other law, rule or regulation forbids it.
It may not be long before we know one way or another because Mazars USA has indicated a ready willingness to share the information they have re Trump’s tax records, so the Committee may be in receipt of them as soon as this coming week.
Meantime Chairman Neal’s path to Trump’s tax returns is likely to be a long and complex affair. It’s little comfort at this point to know he’s in the right when American Justice will be slow to confirm it. That’s why Chairman Cummings’ alternate pathway is the one to watch. With a little bit of luck (and surely we’re overdue), Mazars USA will provide him and his committee with a bombshell.