Steven Mnuchin’s Mysterious Argument
By: Daniel Hemel
Tags: Trump Administration, House Of Representatives, Treasury Secretary, Steven Mnuchin, Taxes

Steven Mnuchin’s Mysterious Argument

Almost no one was surprised when Treasury Secretary Steven Mnuchin said today that he will not comply with the House Ways and Means Committee’s subpoena for President Trump’s tax filings. Mnuchin already had made clear that he believes he is under no obligation to hand over those documents to House members. But there was something puzzling about Mnuchin’s letter in response to the Ways and Means Committee’s subpoena — something that even Mnuchin’s defenders will have a difficult time justifying.

“In reliance on the advice of the Department of Justice, we have determined that the Committee’s request lacks a legitimate legislative purpose, and pursuant to section 6103, the Department is therefore not authorized to disclose the requested returns and return information,” Mnuchin wrote. The emphasis is mine, not Mnuchin’s: the Treasury secretary does not randomly press control-B when writing memos, unlike his boss, who does randomly hit CAPS LOCK when writing tweets. (More accurately, and to give credit where credit is due, the emphasis is Steve Rosenthal’s, who tipped me off to this intriguing issue when similar language appeared in Mnuchin’s May 6 letter to House Ways and Means chairman Richard Neal.)

Here’s why that’s puzzling. Many and probably most lawyers who have studied the subject agree that the Treasury secretary is not obligated to disclose returns and return information to the House Ways and Means Committee if the panel lacks a legitimate legislative purpose for the request. (Not everyone: My co-blogger Brian has made a strong argument — though one with which I disagree — that the Treasury secretary would be obligated to comply with such a request even if it lacked a legitimate reason.) The rationale for the majority view is as follows: The Supreme Court has said that “[t]he power of the Congress to conduct investigations” — though “broad” — is nonetheless limited by the principle that any “inquiry . . . must be related to, and in furtherance of, a legitimate task of the Congress.” Section 6103(f) — which requires the Treasury secretary to disclose returns and return information to the Ways and Means Committee upon a written request from that panel’s chair — cannot sweep more broadly than Congress’s constitutional power. Therefore section 6103(f), which on its face says nothing about a legitimate legislative purpose, must be read against the backdrop of Congress’s constitutional power and therefore limited by the “legitimate legislative purpose” proviso.

But Mnuchin does not simply say that Congress lacks the power to compel him to hand over Trump’s tax returns. He says that he is not authorized to hand over Trump’s tax returns. Not authorized by whom? As Treasury secretary, he certainly is authorized to administer the tax laws — an authority that would normally allow him to decide with whom returns and return information should be shared. The limits on that authority are found in section 6103, which sets forth a general rule that “[r]eturns and return information shall be confidential,” with enumerated exceptions. One such exception is section 6103(f), which applies when a return or return information is requested by the chair of the House Ways and Means Committee, the Senate Finance Committee, or the Joint Committee on Taxation. What Mnuchin seems to be suggesting is that section 6103 — notwithstanding the explicit authorization for disclosure to the Ways and Means Committee — actually prohibits disclosure to the Ways and Means Committee. That’s a very funny way — indeed, a positively perverse way — to read the statute.

Congress was not obligated by the Constitution to enact section 6103. Congress chose to ban the disclosure of returns and return information to most people and to require the disclosure of returns and return information to certain congressional committees upon request. Mnuchin wants to believe, notwithstanding the foregoing, that Congress actually banned the disclosure of returns and return information to its own committees (at least absent a legitimate legislative purpose for a committee’s request). That most certainly is not what the framers of section 6103 set out to do.

Mnuchin’s argument is an exercise in what courts and constitutional law scholars call “severability analysis”: what to do when an application of a statute would be unconstitutional. One option is to toss out the statute entirely. Another — and often the better — option is to drop what’s invalid and keep what’s constitutionally kosher. The key question that a court must ask is “whether the statute will function in a manner consistent with the intent of Congress.” See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987).

Here we have a statute that seeks to require the Treasury secretary to hand over returns and return information to the Ways and Means Committee upon the chairman’s request. Let’s assume, at least arguendo, that the statute would be unconstitutional if it required the Treasury secretary to hand over returns and return information to Ways and Means when that committee had no legitimate legislative purpose for seeking them. The key question, for severability purposes, is whether it’s consistent with the intent of Congress to read the statute as prohibiting that which Congress thought it was requiring.

Even if one thinks that Congress lacks a legitimate legislative purpose for requesting the president’s tax returns, one has to stretch the imagination mightily in order to conclude — as Mnuchin apparently has — that the Treasury secretary is not authorized to hand over the president’s returns. Lewis Carroll’s Alice tells the Queen that “one can’t believe impossible things,” but Alice had never encountered Trump-style severability analysis.