The Trump tax return mirage
Want to make a bet? President Trump's tax returns are probably full of all kinds of low-grade shady stuff. Most of these things are well known and perfectly legal. Shell companies and trusts. In-kind payments. Borrowing from one or more massive life insurance policies. Equity swaps. Endless amounts of cash shored away in the Cayman Islands and other tax havens.
Then there are the things that would actually get him into trouble with our feeble tax authorities: massive amounts of income underreported or not reported at all, liabilities exaggerated to insane proportions, double and triple accounting of various expenses — all of it adding up to this alleged billionaire not having earned any net income in, well, as long as his army of accountants feel comfortable claiming.
We'll never be able to settle this bet, alas, because the president's tax returns are almost certainly never going to be revealed to the public. If they are, it will be because some IRS agent goes rogue, not because Trump's lawyers agree to comply with the ludicrous request made recently by Rep. Richard E. Neal, the Boy Scout Massachusetts Democrat who now heads the House Ways and Means Committee, for tax records from the Donald J. Trump Revocable Trust, various businesses entities, and the president himself. As the president's personal lawyer, William S. Consovoy, explained very ably in a letter that has been released to the public, this is nonsense.
There is, simply put, no constitutional mechanism for compelling a president to release his tax returns. This is not what the obscure 1924 provision of the Internal Revenue Code seized upon by Democrats provides for, either in its plain words or its legislative intent. The law exists to allow the Ways and Means Committee to view certain returns for clearly defined legislative purposes, of which harassing the sitting president is obviously not an example. Even the House's ability to carry out investigations is limited to the furtherance of a legitimate and clearly enumerated legislative power. As the Supreme Court ruled in Watkins v. United States, a judicial decision that put the nail in the coffin of the House Un-American Activities Committee, Congress is not empowered to engage in "exposure for the sake of exposure" or perform "the functions of the executive" or a "law enforcement or trial agency."
Today's Supreme Court would very likely agree. As Justice Ginsburg, whom Consovoy quotes in his letter, once wrote while serving as a circuit court judge, absolute privacy is "fundamental to a tax system that relies upon self-reporting," not least because it "guarantees that the sometimes sensitive or otherwise personal information in a return will be guarded." Even if Ginsburg's views have changed, there are eight more justices who would have to be persuaded, including three other liberals with fairly broad views on the subject of privacy — to say nothing of the conservatives who tend toward a deferential view of executive authority, under which the authority not to release personal tax information doubtless falls.
Moreover, even if the Court were willing to grant Neal's request, the returns would not be seen by anyone except members of his committee in a closed sessions unless Trump himself were to agree to make them public. Guess how likely that is.
The whole thing is a farce. The so-called "norm" according to which presidents since Richard Nixon have made their personal tax returns public is voluntary. Trump remains as free to dispense with it as he is to cancel the annual White House Turkey Pardon — or, for that matter, the daily press briefing, another Nixon-era innovation.
Is this a good argument for Trump's refusal to release his financial records? Of course not. But it's the reality of the situation. Pretending that a committee of dorks in the House of Representatives has magical powers hitherto unknown to constitutional scholars is not going to change it. Nor is indulging the pathetic fantasy that the president of the United States is some random citizen who can be subpoenaed, indicted, or otherwise mucked around with at the whim of his political opponents in Congress. Rep. Neal and his cronies might as well be jumping up and down demanding that Trump reveal his Yahoo email password.
Whining about Trump's tax returns will fire up a certain segment of the Democratic base. It will raise hundreds of thousands, indeed probably millions of dollars for the DNC. Given the party's longstanding obsession with showboating, grandstanding, and applauding its own moral victories in things like special elections, this is more than good enough. But it also doesn't deserve to be taken seriously, any more than the Michael Cohen hearing did last month. It a Benghazi-like mirage.
When Democrats feign some kind of horror at the idea that Trump has kept his tax records hidden, what they are saying is that they strongly suspect that a very rich and very famous businessman with a long-standing record of associating with dubious characters behaves exactly the way most members of his class do when tax day comes around. Knock me over with a feather.
What does it say that the American people chose to elect him over a former first lady, senator, and secretary of the state and may very well choose him again over whatever the woke, principled, ethical competition turns out to be in 2020? This is the important question Democrats ought to be asking themselves instead.