Don’t Embarrass Trump Over Tax Records Release—Charge Him Instead

My criticisms of Donald Trump, as a person and as a president, are too numerous to mention. Nonetheless, I’m struggling to find a justification for the public release of his tax returns with the information currently available. If there’s evidence of a crime, he should be prosecuted to the fullest extent of the law; otherwise, releasing them only results in political embarrassment. If that had any effect, he’d have dissolved into a cloud of dust years ago.

The release, however, brings some temporary satiation to the injustice inherent every time he claimed he would soon release them. It helps quell the feeling that the rich and powerful are never held accountable—that deep-seated feeling in many of us that his presidency handed him a permanent get-out-of-jail-free card. Prosecute, or keep private—but don’t persecute.

But we know none of it will help rebuild the norms he destroyed or undo the damage done in his name on Jan. 6, 2021. It also won’t dissuade financial criminals from seeking high office in the future. Congress is right to focus on legislation mandating the public release of financial details for any individual seeking high office. Trump is seeking re-election in 2024, and he should be compelled to release details of his financial dealings owing to that. But outing him as woefully less wealthy than he claims, or whatever other legal-but-embarrassing details may be found in his returns, can only bolster his own perception of victimhood.

The Case for Privacy

Many of Trump’s misdeeds in office amounted to violations of norms and mores. But taxes are different—or at least, they can be. If he took improper deductions or overstated valuations for depreciation, it isn’t the violation of an ethereal concept. It’s a crime, plain and simple.

The case for privacy needn’t be made as part of any larger slippery-slope argument or in deference to some higher principles, because anyone who hasn’t recognized there are two sets of rule books hasn’t been paying attention. Trump’s returns being made public will have no bearing on whether you, or I, or anyone like us faces similar exposure. If those in power wish to air your dirty financial laundry to shame you, they will. They needn’t defer to the precedent set here.

Photographer: Justin Tallis/AFP via Getty Images

The same goes for an argument against weaponizing financial records in fear of “the other side” eventually doing the same. Holding power in abeyance to prevent the future wielding of that power against you is folly. Once an option to take a given action exists, the option exists for all actors. Put more bluntly, if the GOP wishes to release embarrassing financial details about a future Democratic candidate, they will without regard to what is done here.

What is done with Trump’s returns will be setting the narrative—which is setting the metaphorical location where debate, argument, and maybe prosecution take place. An old quote typically attributed to poet Carl Sandburg says, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” If we pound the table, we suggest the law and facts are not with us.

The Case for Release

Section 6103 of the tax code would suggest that the release of tax records to committees of Congress is permissible, and what they do with said returns is not stated. There is thus every indication that the Joint Committee on Taxation has the legal ability to release the records—that much does not appear to be in doubt.

More generally, it seems virtually axiomatic that candidates for high office should need to prove they are not being financed by foreign governments, tied to organized crime, or any other financial faux pas that could prove problematic when clothed with the power of, say, the presidency. Releasing his records codifies a long-held norm and compels a former president to hold true to his word regarding his intention to comport with said norm.

If the records contain evidence of a crime or involvement with foreign governments, those details should be released publicly one way or another. The public has a right to know such details even if they don’t have a right to go on a fishing expedition for them.

The Verdict

Our response to the seriousness of any misdeed is part of the public messaging; society is deprived of justice if the focus is placed on the cleanliness of Dahmer’s freezer rather than the crimes he committed.

The path forward should be a commitment to mandatory financial disclosure for office. Increased transparency in the government in this regard is an unalloyed good, but it should be in the context of a broader project—not an ad hoc solution to an individual huckster. Yet society abhors the concept of double jeopardy, and so with every stone cast his way in the public square, there is one less to be thrown in court.

This is a regular column from tax and technology attorney Andrew Leahey, principal at Hunter Creek Consulting and a sales suppression expert. Look for Leahey’s column on Bloomberg Tax, and follow him on Mastodon at @andrew@esq.social.