(Bloomberg’s opinion) – The The Ministry of Justice announced last week that Congress could examine former President Donald Trump’s tax returns and give the Treasury approval to release the documents. On Wednesday, the federal judge presiding over the issue will hear attorneys representing both Trump and House investigators, and will likely ask both sides to provide written arguments on whether returns should become public.
Trump’s lawyer, Ronald Fischetti, has already assessed the verdict of the Ministry of Justice as “absolutely ridiculous”. He also said that Congress has no right to see Trump’s submissions because “there is no evidence of crime here and I oppose announcing the return not only on behalf of my client, but on behalf of all future holders of the Office of the President of the United States.”
Fischetti does what every good, aggressive lawyer often has to do for a well-known client who is overwhelmed by litigation and public control: a big part for the media and an attempt to make Trump – and all future presidents! – They seem to be victims. He also gives the impression that he did not completely swallow what was said in the verdict of the Ministry of Justice, although, of course, he had to. But for Fischetti to admit any of that would be self-defeating.
The main argument in the judgment of the Ministry of Justice is that the Constitution provides for Congress as a strong examination of the presidency and that the vigilance of the legislature should not be limited by an imperial understanding of the power or independence of the executive. In that sense, the verdict potentially warns all future users of the Oval Office, but not in the way Fischetti – or Trump – would like to portray it.
It may take months for legal submissions to go through the court system and for District Court Judge Trevor McFadden to put an end to legal competition. But if McFadden’s understanding of this conflict corresponds to the Department of Justice, it will be a victory for good government. It would also help strengthen advocacy for stricter ethical rules and increased disclosure requirements for all presidents.
The creators of the Constitution certainly did not, and perhaps could not, imagine someone with Trump’s financial conflict of interest and appetites occupying the White House. Federal conflict of interest laws were updated following the Civil War corruption scandals and the Watergate investigation, but the presidency largely operated by a code of honor. This was once considered practical. The powers of the presidency were so extensive that any action could create a conflict, so any conflict of interest law was meaningless. It was therefore best, he argued, to trust the executive and not create restrictions that prevented the president from acting freely and with full constitutional authority.
Trump tore off the band-aid to that strange notion. He refused to voluntarily publish his tax returns, as did all his predecessors from Gerald Ford. He placed his business property in a trust supervised by his accountant and his two eldest sons, which did not authentically distance him from their business. He viewed the presidency as a money-making venture, turning the White House into a Walmart. His tenure has become proof of why new revelations and ethical rules need to be made for his presidency and each subsequent one.
When the House of Representatives’ ways and means committee filed a lawsuit to gain access to Trump’s 2019 tax returns, he said he needed submissions to be able to assess the Internal Revenue President’s audit program and have better insight into potential financial conflicts of interest. Former Attorney General William Barr’s Justice Department denied that argument, basically saying the request was a politically motivated fishing expedition.
Merrick Garland’s Department of Justice has none of that. He dismissed the appeal of the fishing expedition as irrelevant in his response to a renewed request for records in June. Congress is allowed to strictly supervise the presidency, and its motivation is in addition, it was said in last week’s verdict of the Ministry of Justice. Congress does not have to submit requests solely on the basis of laws under consideration, as the Barr team has argued, which the Garland team has repealed. Oversight is oversight and Congress can have it.
Congress, the ruling said, believes Trump’s tax returns could “reveal hidden business entanglements” and “conflicts of interest, which would affect the proper performance of the former president’s responsibilities.” The return could also “show foreign financial influences on former President Trump that could serve as a basis for relevant Congressional legislation.” These are all valuable areas of investigation, the Ministry of Justice decided, and “independently are sufficient to justify a request for the former president’s tax records.”
The extent to which Trump’s dances with dictators and his tolerance of corrupt, swampy behavior in Washington are directly tied to his financial self-interest and greed remain one of the under-examined features of his presidency. Former Special Adviser Robert Mueller largely ignored this, and two recall inquiries did not take this into account. A new verdict by the Ministry of Justice puts her back in the game.
Trump and his lawyers don’t like any of that, understandably. But no president should be able to work like Trump, and Judge McFadden would perform public service ensuring that it doesn’t happen again.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Timothy L. O’Brien is a senior columnist for Bloomberg Opinion.
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