Daniel Hemel is an assistant professor at the University of Chicago Law School.
State lawmakers across the country are pursuing creative methods to force President Trump to release his federal income tax returns before he can run for reelection in 2020. Unfortunately for citizens interested in greater presidential transparency, those efforts are likely to fail.
There is, however, a much easier way for state lawmakers to force the disclosure of Trump’s tax information: publishing the state tax returns already in their possession, which would reveal much of the same information appearing in his federal documents.
So far, state lawmakers have focused their attention on bills that would require candidates to release their federal income tax returns before appearing on those states’ presidential ballots. The Democratic-controlled New Jersey legislature approved such a bill last month. State lawmakers in California, New York and 20 other states have introduced similar legislation.
The ballot-access approach faces three formidable obstacles: First, Democrats control both the governor slot and legislatures in only half a dozen states. Republicans are likely to block the bills from becoming law anywhere else. New Jersey Gov. Chris Christie, a Republican, is widely expected to veto his state’s ballot-access bill.
Second, if a ballot-access bill becomes law in a deep-blue state, there is no guarantee that Trump will comply. In states such as California — where he lost by a landslide — Trump might decide to keep his name off the 2020 ballot rather than release his returns.
Finally, Trump would almost certainly bring a constitutional challenge to any law requiring him to disclose his tax returns as a condition for ballot access, and it is far from clear that these laws would hold up in court.
But publishing Trump’s state tax returns is a much more viable option — and would make his returns available to the public now, rather than three years from now.
Trump’s New York state resident income tax returns show his salary, dividends, capital gains, rental real estate income and other income from all sources — including sources outside New York. If Trump fills out a “Resident Itemized Deduction Schedule” — as most high-income individuals in New York do — he also reports his gifts to charity. And if he is using phantom losses from previous years to offset tax on his current-year income, then the New York state return shows that too.
New York’s Department of Taxation and Finance keeps copies of Trump’s state returns from as far back as 1990. Current New York law prohibits state tax officials from disclosing an individual’s returns, but the New York legislature could amend that law to require the state tax authority to post the president’s returns from the past quarter-century on its website. For the sake of evenhandedness, the legislature might apply the same rule to its other elected officials. Gov. Andrew M. Cuomo is unlikely to object: He releases his returns every year, as do the state’s two senators, fellow Democrats Charles E. Schumer and Kirsten Gillibrand.
Federal law does not stand in New York’s way. The Internal Revenue Code prohibits state officials from disclosing a taxpayer’s federal return, but it does not stop New York from disclosing information that Trump reports on his state forms.
A bill requiring the disclosure of Trump’s state tax returns should sail through the New York State Assembly, where Democrats enjoy an overwhelming majority. It would also stand a strong chance of passing the State Senate, where Democrats occupy roughly half the 63 seats. Moderate Republicans might come on board as well.
The political environment might be even more hospitable in other states with Democratic governors and Democratic-dominated legislatures — including California, Connecticut and Hawaii, where Trump has real estate investments and presumably files nonresident returns. While those returns don’t include as many details as Trump’s New York returns, they still could reveal some important information, such as his adjusted gross income from all sources, both in and out of state.
Skeptics might say that public disclosure of Trump’s state tax returns would violate the principle of taxpayer privacy. But Trump is no ordinary taxpayer. The public has a right to know whether its president is paying his fair share of taxes and whether he has financial conflicts of interest as commander in chief.
State tax returns are not a complete substitute for the federal returns that every president for the past four decades has disclosed. And even Trump’s federal returns might not reveal the full extent of his financial ties to the Russian government or other foreign entities. But some information is better than none — and it certainly would be better than the dribs and drabs of information disclosed through sporadic leaks.
State lawmakers have the power to provide voters with a more comprehensive understanding of the president’s taxpaying past. They should use it.