Every president over the last 40 years, by custom, has published his tax returns so the public can be aware of conflicts of interest. The House of Representatives has the legal right to obtain tax returns for any individual, and has exercised this right in the past, including against officials in the Executive branch. Additionally, the state of New York passed a law compelling cooperation with the release of any tax returns requested by Congress, adding a second layer of clarity to an already iron-clad law.
President Trump has filed suit to prevent the handover of his tax returns. The lawsuit is not good. Reading over the document, it is astonishing to believe its authors attended law school. It should be written in crayon.
The Trump legal team advances three broad legal arguments. (Though both the terms “legal” and “arguments” have to be defined loosely.) First, the brief argues that Democrats are biased and hate Trump:
Plaintiff Donald J. Trump is the 45th President of the United States. He is a member of the Republican Party. President Trump brings this suit in his individual capacity as a private citizen.
Defendant Committee on Ways and Means is a standing committee of the United States House of Representatives. Representative Richard Neal (D-Massachusetts) is its chair. Both the House and the Committee are currently controlled by the Democratic Party.
Defendant Letitia James is the Attorney General of the State of New York. She is a member of the Democratic Party.
Most of the brief is filled with political narrative, repeating the themes that the defendants are Democrats, and therefore any actions they undertake are attempts to get Trump rather than legitimate exercises of their official duties.
Second, the brief argues that the 2016 election permanently settled the question of whether Trump should release his tax returns:
During the 2016 election, then-Candidate Trump declined to disclose his federal tax returns, citing ongoing IRS audits and the need to not prejudice his rights in those proceedings. His tax returns became a major campaign issue, with Secretary Clinton repeatedly insinuating that their nondisclosure suggested they contained politically damaging information. As she framed the criticism at one presidential debate, “[W]hy won’t he release his tax returns? … Maybe he’s not as rich as he says he is. Second, maybe he’s not as charitable as he says he is. Third, we don’t know all of his business dealings …. Or maybe he doesn’t want the American people … to know that he’s paid nothing in federal taxes … It must be something really important, even terrible, that he’s trying to hide.”
Ultimately, this issue was litigated in the 2016 election. Voters heard the criticisms from Secretary Clinton, and they elected President Trump anyway. Democrats in Congress and across the country, however, have only become more eager to disclose the President’s tax returns for political gain.
Both these claims follow arguments Trump has made in numerous tweets and rants to the media. They are not remotely legal arguments. The Constitution assumes that different elected officials will have opposing political interests. That is indeed the entire basis of the separation-of-powers system. Establishing that an official has opposing political interests does not negate their ability to exercise their enumerated powers.
Finally, and most strangely of all, Trump’s lawyers call the law to compel his tax returns a violation of his First Amendment rights. “The First Amendment prohibits laws enacted for the purpose of discriminating or retaliating against an individual for his politics or speech …” it insists. “It was enacted to retaliate against the President because of his policy positions, his political beliefs, and his protected speech, including the positions he took during the 2016 campaign.” By this logic, any law or legal obligation Trump does not like is a violation of his First Amendment rights.
Trump’s Roman Moroni–style argument that his opponents are lousy corksuckers who have violated his farging rights is exceedingly unlikely to win. The purpose is to run down the clock until, ideally, the campaign is over. But his insistence on pursuing absurd legal or legal-esque strategies to maintain the privacy of his ethically dubious business does raise yet again the tantalizing question: Just what is in those tax returns?
