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), <https://tinyurl.com/bdhj239v>;

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 Court’s decision in Powell v. McCormack and its progeny? By the way, you may remember that California enacted a statute along the lines you suggest—it 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.

Seth

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), <https://tinyurl.com/2p8bn8hr>. 

Seth Barrett Tillman, ‘A Letter to David Cay Johnston at the Daily Beast,’ New Reform Club (Jan. 1, 2023, 9:29 AM), <https://reformclub.blogspot.com/2023/01/a-letter-to-david-cay-johnston.html>.