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1/ I agree with Orin here: Not only is it only a *draft* memo, by a subordinate lawyer, but--more importantly--it simply doesn't engage with the constitutional argument on which Treasury now relies.
games-cdn.washingtonpost.com/notes/prod/def…
games-cdn.washingtonpost.com/notes/prod/def…
2/ DOT now assumes that W&M manifestly lacks any legitimate basis for seeking the returns. That assumption is wrong--the returns are obviously relevant to the question, for instance, whether Trump has obligations to Russian and other foreign interests--but . . .
3/ ... the draft memo doesn't rebut that assumption (because it was written earlier), nor does it address whether DOT would be right that it wouldn't have to turn over the returns if it were *correct* about a manifest absence of any legitimate purpose.
4/ Make no mistake: I think DOT's view is based upon a mistaken premise (although I also think Congress--HPSCI in particular--could do a much better job justifying the request). But this memo (understandably) does not even engage on the relevant constitutional question.
5/ It is, instead, entirely focused on the *statutory* analysis, substantially all of which DOT now accepts, if I'm not mistaken.
