Comment: Trump, tax lawyers wrong about Congress’ oversight

A judge could rule soon on the release of Trump’s tax returns to Congress; and the American people.

By Timothy L. O’Brien / Bloomberg Opinion

The Justice Department said last week that Congress could examine former President Trump’s tax returns and gave the Treasury Department the go-ahead to release the documents. On Wednesday, a federal judge presiding over the matter heard from lawyers representing both Trump and House investigators, and he was likely to ask both sides to submit written arguments about whether the returns should become public.

Trump’s attorney, Ronald Fischetti, has already labeled the Justice Department ruling “absolutely ridiculous.” He also said that Congress isn’t entitled to see Trump’s filings because “there is no evidence of wrongdoing here and I object to the release of the returns not only on behalf of my client but on behalf of all future holders of the Office of the President of the United States.”

Fischetti is doing what every good, aggressive lawyer often needs to do for a famous client awash in litigation and public scrutiny: grandstanding for the media and trying to make Trump — and all future presidents! — appear to be victims. He also gives every appearance of not having fully ingested exactly what the Justice Department ruling said, though of course he must have. But for Fischetti to acknowledge any of that would be self-defeating.

The core argument in the Justice Department’s ruling is that the Constitution envisions Congress as a strong check on the presidency and that the legislative branch’s vigilance shouldn’t be circumscribed by an imperial understanding of the executive branch’s power or independence. In that regard, the ruling could put all future Oval Office occupants on notice, but not in the way Fischetti — or Trump — would like to portray.

It may take months for legal filings to wend their way through the court system and for District Court Judge Trevor McFadden to put an end to the legal jousting. But if McFadden’s understanding of this standoff corresponds with the Justice Department’s, it will be a victory for good government. It would also help fortify a push for tighter ethics rules and enhanced disclosure requirements for all presidents.

The framers of the Constitution certainly didn’t, and possibly couldn’t, envision someone with Trump’s financial conflicts of interest and appetites occupying the White House. Federal conflict of interest laws have been updated in the wake of Civil War corruption scandals and the Watergate investigation, but the presidency has largely operated on the honor code. That was once seen as practical. The presidency’s powers were so expansive that every action could create a conflict, so any conflict-of-interest law was meaningless. It was therefore best, the argument went, to trust the executive and not create limits preventing a president from operating freely and with full constitutional authority.

Trump tore the Band-Aid off that quaint notion. He refused to voluntarily release his tax returns, as all of his predecessors since Gerald Ford had. He placed his business holdings in a trust overseen by his accountant and his two eldest sons that didn’t authentically distance him from their operation. And he saw the presidency as a moneymaking venture, turning the White House into a Walmart. His tenure became an exhibit of why new disclosure and ethics rules needed to be crafted for his presidency and every one that follows.

When the House Ways and Means Committee sued to gain access to Trump’s tax returns in 2019, it said it needed the filings so it could assess the Internal Revenue Service’s presidential auditing program and have a better window into potential financial conflicts of interest. Former Attorney General William Barr’s Justice Department batted back that argument, essentially saying that the request was a politically motivated fishing expedition.

Merrick Garland’s Justice Department is having none of that. It dismissed the fishing expedition complaint as irrelevant in its response to a renewed request for the records in June. Congress is allowed to oversee the presidency robustly, and its motivation is beside that point, the Justice Department said in last week’s ruling. Congress doesn’t have to make requests based solely on pending legislation it might be considering, as Team Barr argued and which Team Garland swatted down. Oversight is oversight, and Congress can have at it.

Congress, the ruling noted, believes that Trump’s tax returns could “reveal hidden business entanglements” and “conflicts of interest, affecting proper execution of the former President’s responsibilities.” The returns also might “show foreign financial influences on former President Trump that could inform relevant congressional legislation.” Those are all worthy areas of inquiry, the Justice Department ruled, and “are independently sufficient to justify the request for the former President’s tax records.”

The extent to which Trump’s dances with dictators and his tolerance of corrupt, swampy behavior in Washington was tied directly to his financial self-interest and greed remains one of the underexamined hallmarks of his presidency. Former special counsel Robert Mueller largely ignored it, and two impeachment inquiries didn’t consider it. The Justice Department’s new ruling puts it back in play.

Trump and his lawyers don’t like any of that, understandably. But no president should be able to operate as Trump did, and Judge McFadden would perform a public service by ensuring that it doesn’t happen again.

Timothy L. O’Brien is a senior columnist for Bloomberg Opinion.

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