While the best con is one in which the victim never even realizes they got scammed, that can seldom be guaranteed. So the con artist needs a final argument to make to their mark if they get confronted, and the one they often use goes as follows: Sure, I conned you. But this is your fault. You were dumb enough to believe me. Now get lost, sucker.
That is what President Trump is now saying to the American public on the subject of his tax returns. He spent years saying that he would be releasing his returns as soon as a routine IRS audit of them was complete, so the American public could understand exactly where he gets his money and where he might have conflicts of interest as president.
This was and remains a pressing question, because Trump’s greed is so encompassing that we can never be sure that if faced with a choice between doing what is in the best interests of the country and making money for himself, he won’t choose the latter. After all, this is a man who while running for president was pursuing a hotel deal in Moscow, sucking up to Russian dictator Vladimir Putin and claiming falsely that he had no business interests in Russia.
Indeed, there has never in American history been a president for whom it was more important that the public learn the full details of their finances. But now that Democrats in Congress have made a formal demand to the IRS for six years of Trump's returns as allowed by a law passed in 1924, Trump and his allies are saying to the public: You were dumb enough to believe me when I said I'd show you the returns? That's your own fault.
Here’s an exchange between acting White House chief of staff Mick Mulvaney and Bill Hemmer on “Fox News Sunday”:
HEMMER: To be clear, you believe Democrats will never see the president's tax returns?
MULVANEY: Oh, no, never. Nor should they.
Keep in mind, that that’s an issue that was already litigated during the election. Voters knew the president could have given his tax returns, they knew that he didn’t and they elected him anyway, which is, of course, what drives the Democrats crazy.
Before we go any farther, let’s remind ourselves that if Trump’s tax returns showed nothing more than that he is a shrewd and wealthy businessman, he’d have posted them on billboards all over Manhattan. The fact that he is so determined to keep them secret is evidence that they contain information that when fully investigated will be scandalous at a minimum, and perhaps even criminal.
And this isn’t about whether “Democrats” will see the president’s tax returns; it’s about whether the public will. But before we move on to the legal question, let’s consider the idea that this issue “was already litigated during the election.”
Imagine if when the Monica Lewinsky scandal broke, Bill Clinton had said, “The American people knew I was a philanderer when they elected me. This was all litigated in 1992, so we shouldn’t talk about it anymore.” Or if Richard Nixon had said, “The American people knew about Watergate when I ran for reelection. This was all litigated in 1972. It’s over; move on.”
The idea that if the president won he gets a blanket immunity for anything that came up during the election is ludicrous. Meanwhile, the “I can’t release the returns because I’m being audited” excuse was always a lie. The IRS doesn’t forbid anyone from making their returns public if they’re being audited.
We all know that if Hillary Clinton were president and was refusing to release her returns, Republicans would be losing their minds; they might have begun impeachment proceedings over that issue alone. But right now they’re pursuing two tracks: a public campaign of preposterously bad-faith arguments for why the returns should remain secret, and a legal strategy that amounts to little more than a plea to the five conservative justices on the Supreme Court to bail Trump out.
The legal battle
The tax code is simple and clear on this question. It says that when the chairman of one of Congress’ tax-writing committees requests an individual’s tax return from the Treasury Department (which includes the IRS), “the Secretary shall furnish such committee with any return or return information specified in such request.” It doesn’t say that the president is exempt, or that Congress must justify its request. It just says that if they make the request, that request “shall” be honored. Period.
As Daniel Hemel explains here, that doesn’t mean such a request couldn’t theoretically violate some other law or part of the Constitution such as the First Amendment. But there’s simply no question that the request for Trump’s tax returns serves a legitimate investigative purpose. Given their oversight of the IRS and the president’s own obvious conflicts of interest, there are a dozen grounds on which you could justify the request. The fact that Democrats also have political motives doesn’t change that one bit.
Even a highly motivated Supreme Court majority would have trouble ruling otherwise. So I suspect that what Trump and his legal team are hoping for is one of two outcomes. The first would be that instead of ruling that this particular request is out of bounds, the five conservatives on the court will strike down or alter the entire 1924 law, limiting Congress' ability to obtain tax returns in a way that saves Trump from scrutiny.
The second outcome, and the more likely one, is that even if Trump loses in court, he will succeed in delaying the release of his returns until after the 2020 election. Should he win, no matter what they reveal, he’ll then be able to say to the public: You knew I was a crook when you elected me. It’s your own fault for being so stupid. Now get lost, suckers.