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Sunday, January 01, 2023

A Letter to David Cay Johnston at the Daily Beast


David Cay Johnston, ‘Trump’s Taxes Are the Best Case Yet for Putting Him in Prison,’ Daily Beast (Dec. 31, 2022 11:18 AM ET updated), <>;

Dear Mr Johnston,

You wrote: “Another excellent reform would be making public the tax returns of Cabinet members, federal judges, Senators, and Representatives. It would surely deter the dishonest from seeking to hold office, which is a good policy.” I don’t think your suggested proposal would be constitutional in regard to members of Congress: that is, elected officials whose qualifications are set by Article I of the Constitution. It is the very same issue which applies to the presidency and its Article II qualifications—such qualifications are exclusive and cannot be amended by statute or federal regulation.

You also wrote: “The Trump tax returns also reinforce that Congress should pass a law directing the IRS to make public years of income tax returns for any presidential candidate who meets a low threshold—say, winning two primaries, or being nominated by a political party.” I think this proposal would fail to pass constitutional muster under the rationale announced in U.S. Term Limits v. Thornton and, more broadly, under the First Amendment (as interpreted by the Supreme Court post-Buckley v. Valeo)that is, ballot control, control over primaries, participation in primaries, and participation in the wider political process are no basis to sidestep the exclusivity of the qualifications set out in Articles I and II. Did any practitioner or academic (Professor Tribe?) suggest to you that your proposed strategy might be constitutional—as a successful workaround in regard to the Supreme Courts decision in Powell v. McCormack and its progeny? By the way, you may remember that California enacted a statute along the lines you suggestit was struck down, as unconstitutional, back in 2019, by the (fairly liberal) California Supreme Court. 

Finally, you wrote: “Perhaps most glaring in the tax returns is that they include 26 Trump businesses—or imaginary businesses—with zero revenue and hundreds of thousands of dollars in tax deductions for expenses.” Were these businesses start-ups? Or, possibly, second round finance projects? That might explain why they had no reported revenue. And could you not investigate to see if these businesses really exist before suggesting that they do not exist? At this juncture, can you point to even one specific entry in any of Trump’s tax filings which you know to be fraudulent or, even, merely in error? That being the situation, your article’s title mentioning “prison” seems overly ambitious given what is now known about Trump’s past tax filings.


PS: You have cited my material in the past. See David Cay Johnston, It’s Even Worse Than You Think: What the Trump Administration Is Doing to America 30, 305 (2018), <>. 

Seth Barrett Tillman, ‘A Letter to David Cay Johnston at the Daily Beast,’ New Reform Club (Jan. 1, 2023, 9:29 AM), <>.


Eric Rasmusen said...

It often is the case that editors pick titles of articles, rather than authors. The title, "Trump’s Taxes Are the Best Case Yet for Putting Him in Prison," migh have been added by editors, but I see the article ends with:

"Unless Trump can produce records showing the expenses are real and meet other standards to be deductible, that’s fraud. That Trump did it 26 times as a candidate and as president is powerful evidence that he qualifies for prosecution by the federal government and New York State for criminal tax fraud.

Watch to see if Attorney General Merrick Garland, New York State Attorney General Letitia James, or Manhattan District Attorney Alvin Bragg pursue what looks to me like a slam-dunk prosecution—or continue to enable Trump’s lawless conduct."

Isn't that defamation per se? That is, isn't Mr. Johnston is accusing someone of committing a crime when he has zero evidence? He presumes Trump does not have have records and the expenses are not real. That is like presuming that someone driving a Mazda couldn't produce a title to it and must be a car thief. Furthermore, having inadequate records is not criminal fraud, as I would think Mr. Johnston must know.

Jerry Fuhrman said...

When I wrote a weekly opinion column for the Roanoke Times I'd religiously submit a title to go along with each. And an editor would scrap my title and attach her own. Sometimes hers were off point. And they were always dull. But she was paid to do such things and, by God ...

Anyway, sometimes there is no relationship between title and body of an article. Everyone has to earn a living.

P.S. My titles were always better.