Trump’s tax returns are missing from tax reform debate

President Trump has repeatedly refused to release his tax returns despite earlier promises to do so and the fact that every presidential candidate has released their returns for the past four decades.

While formal legal arguments can be made why he should be required to release his returns, the arguments necessitate turning to provisions such as the Constitution’s Emoluments Clause. If we citizens are relying on the legal process to unveil what Donald Trump so deeply fears from revealing his tax returns, the wait may be a substantial one as the courts work their way through unchartered legal territory.

{mosads}Trump’s recent actions, however, should mean that the public no longer needs to wait for the courts to act.

Up until now, Trump has been able to argue that the voters can decide for themselves whether or not his finances are important in their evaluation of him as a candidate. It would be a very different situation, however, if Trump relied on his own tax returns as evidence to justify a particular action or law.

This is precisely what he just did with the tax reform debate. The Washington Post has reported that Trump placed a phone call to a meeting of senators and in arguing for the tax reform plan told them that, “he had spoken to his own accountant about the tax plan and that he would be a ‘big loser’ if the deal is approved.” 

Trump, in other words, is offering himself up as Exhibit A in refuting claims that the tax reform plan would unfairly enrich the wealthy at the expense of the middle class.

In legal circles, we would call this “opening the door” to information that an individual otherwise could refuse to reveal. In fact, the principle is less a legal rule than a common sense notion based on fairness.

One need not be a lawyer to understand why the law doesn’t let a witness simply take the stand, make an unverified claim that “I didn’t do it,” and then refuse to be questioned about the claim.

Likewise, basic fairness says that if someone offers themselves up as “proof” on a matter of public debate, the public then has every right to say, “Well, then, show us.”

Indeed, one wonders why a senator during that phone call did not say to the president when he made that claim, “You are right, your tax returns would be very instructive on how the tax bill would affect the wealthy, please send us your returns immediately so we can see how the tax proposals would affect someone of your wealth.” 

In short, if President Trump wants to sit quiet while resisting calls for transparency when it comes to his taxes, then he can allow the legal process to play out and let the lawyers and judges divine the meaning of the Emoluments Clause. But if he wants to use the impact of a law on his own finances as a way to actively argue for a bill’s passage, then he has opened the door and needs to be held to account. 

No player in a game of poker would simply let another player claim that he had four aces and collect all of the chips in the pot without demanding to see the other player’s cards.

It is simply what fairness dictates.

So Mr. President if you want to talk tax reform and use your own taxes as proof of how fair and great your bill will be, lay your cards on the table and show us your tax returns; otherwise, we have every right to suspect that you have a card (or perhaps a Russian ties) hidden up your sleeve.

Scott E. Sundby is a professor of law at the University of Miami.