Will Trump's Tax Records Be the Next Pentagon Papers?

Protestors march in a downtown street holding a sign in support of Republican presidential candidate Donald Trump releasing his tax returns, outside of a campaign rally attended by Trump, Friday, September 16, 2016, in Miami. (Photo: AP/Lynne Sladky)

Will Trump's Tax Records Be the Next Pentagon Papers?

A broad coalition of activists is agitating to force the release of Donald Trump’s tax returns, but it may turn out that the only way we’ll ever see his records is if someone leaks them to the media.

Democrats, liberals, activist groups, and the media are scrambling to figure out how to respond to the dizzying array of crises triggered by the Trump administration. People concerned about immigrants, refugees, reproductive rights, the environment, mass incarceration and police racism, workers' rights, and other issues are taking to the streets, lobbying, mobilizing new local groups, and other actions. But there is one piece of information that, if revealed, could single-handedly undermine Trump's presidency before he is able to gain momentum: his federal tax returns.

A broad coalition of activists--which so far includes the leaders of the January women's marches that galvanized five million people in cities across the country, MoveOn.org, the American Federation of Teachers, the Indivisible Project (which has inspired more than 7,000 local groups to organize, including protests at local town halls sponsored by members of Congress), Americans For Tax Fairness, the Center for Popular Democracy (a network of local community organizing groups), and Our Revolution (the organization built from Bernie Sanders's presidential campaign)--are planning a massive Tax March on April 15 to demand that Trump release his tax returns. They intend to walk from the U.S. Capitol to the White House, passing both Trump's hotel and the IRS building. They also expect to organize marches in more than 60 cities across the country.

Marches, lawsuits, and demands from members of Congress can keep the issue in the public eye but they may not be enough to actually produce Trump's tax documents. Perhaps the only way we'll ever see his returns is if a courageous IRS employee, or one of Trump's own lawyers or accountants, leaks them to the media, just as Daniel Ellsberg helped to bring down Richard Nixon by releasing the secret Pentagon Papers to TheNew York Times in 1971.

Trump has adamantly refused to release his returns. He pledged to do so once the IRS had completed its audit. After the election, in early January, Trump repeated that claim: "I'm not releasing the tax returns because, as you know, they're under audit."

That's a bogus excuse. Under federal law, the IRS is required to audit the taxes of the president, but an audit does not prevent anyone, including the president, from voluntarily releasing personal tax information. President Richard Nixon made his tax returns public while he was still under audit. Since then, every major party nominee since Nixon (except Gerald Ford, who released a summary) has released his or her tax returns to the public.

With that excuse exposed, Trump changed his tune.

In late January, his spokesperson, Kellyanne Conway, announced that Trump will not release his tax returns under any circumstances, even after the audit is completed.

"The White House response is that he's not going to release his tax returns," Conway said in an interview on ABC's This Week. "We litigated this all through the election. People didn't care," she said. "They voted for him, and let me make this very clear: Most Americans are very focused on what their tax returns will look like while President Trump is in office, not what his look like."

This excuse is also spurious.

In January, an ABC News/Washington Post poll found that 74 percent of all those surveyed, and 49 percent of those who voted for Trump, said that the president should release his tax returns.

By the end of February, more than one million people had signed a petition on the White House website, launched on Inauguration Day, to "Immediately release Donald Trump's full tax returns, with all information needed to verify emoluments clause compliance." It was by far the largest number of names on a White House petition, surpassing a 2012 petition to recognize the Westboro Baptist Church as a hate group, with more than 387,000 signatures.

Trump obviously fears that the release of his tax returns could be an embarrassment and push his already low favorability ratings over a cliff.

Trump obviously fears that the release of his tax returns could be an embarrassment and push his already low favorability ratings over a cliff. Even worse, the returns could provide ammunition to those who'd like to see him impeached.

Many Americans want to know: What is he hiding? Tax experts have identified four likely concerns.

First, Trump's tax returns could reveal the extent of his global business dealings and entanglements, including potential conflicts of interest that violate the Constitution's Emoluments Clause, which forbids presidents from accepting payments from foreign governments. Trump was required to file financial disclosure forms that revealed that he has a stake in or owns 564 businesses, corporations, limited partnerships, or limited liability companies around the world. Many of his businesses work in or with foreign countries, including Russia. Some of Trump's business partners might be close to Putin. His tax returns might show that he's making payments on loans from foreign banks and to who have invested in his businesses.

"Until we see his taxes, we don't know how much money he owes Russia, China, and other countries," said Ben Wikler, Washington director of MoveOn, one of the groups sponsoring the Tax Day marches.

Second, Trump's tax returns might reveal that he isn't as wealthy as he has claimed. During the campaign, one of Trump's biggest arguments was that as a successful businessman, he could fix the nation's economy and stem the exodus of jobs. As evidence of his business acumen, Trump claimed to be worth $10 billion. But Forbes magazine put the figure at $4.1 billion.

Trump's tax returns might show that even that number is a wild exaggeration, that he's mired in debt, and that the number of his businesses that have gone bankrupt is even more than the six we already know about. (Despite this, on April 18, 2015, Trump tweeted this falsehood: "For all of the haters and losers out there sorry, I never went Bankrupt").

Third, the tax returns might reveal that Trump has paid little--and in some years, none--in federal income taxes. If there's one thing that most Americans agree on it is that the super-rich should pay their fair share of taxes.

In a debate last September, Hillary Clinton scoffed at Trump's failure to release his tax returns, suggesting that he may be hiding the fact that he paid nothing in federal taxes. "That makes me smart," Trump responded.

In October, TheNew York Times obtained and released Trump's 1995 tax records, which revealed that he claimed a $916 million loss that could have permitted him to avoid paying federal income taxes for up to 18 years.

The losses stem from major business failures, including his mismanagement of three Atlantic City casinos, the financial crash landing that was Trump Airlines, and his bungled purchase of the Plaza Hotel in Manhattan.

After the Times story was published, Trump again sought to turn the revelations it into an indication of his business acumen.

After the Times story was published, Trump again sought to turn the revelations it into an indication of his business acumen.

"Mr. Trump is a highly-skilled businessman who has a fiduciary responsibility to his business, his family and his employees to pay no more tax than legally required," he said in a prepared statement.

In Trump's logic, if a wealthy mogul with a good accountant can exploit tax loopholes created to help the super-rich avoid paying taxes, he has a moral obligation to take advantage of them. The statement didn't mention that while enriching himself, Trump stiffed scores of unpaid contractors and bondholders on his casinos. In his statement, Trump even claimed that his experience manipulating the tax laws was a positive credential for a would-be president: "Mr. Trump knows the tax code far better than anyone who has ever run for President and he is the only one that knows how to fix it."

Fourth, the tax returns might reveal that Trump gives little or no money to charity. Trump has long boasted that he's a generous philanthropist. He often showed up at star-studded charity events to demonstrate his do-gooderism. On the same day that Trump announced he was running for president, he released a 93-page list of his charitable donations. The list included 4,844 individual gifts that totaled $102 million. Washington Post reporter David Fahrenthold spent months trying to confirm Trump's claims. He called more than 420 charities on Trump's list. Only one group, the Police Athletic League of New York City, said that it had received a donation from Trump--and that one was for less than $10,000.

Fahrenthold discovered that even the Trump Foundation, supposedly created as a vehicle for Trump's charitable giving, is mostly a scam. Trump has given only $5.5 million to his own foundation and nothing since 2008. Meanwhile, Trump enticed others to contribute $9.3 million to the foundation. This helps Trump look like a generous donor without spending his own money. Moreover, Trump has illegally used the Trump Foundation for his own business purposes, a clear violation of federal tax laws against self-dealing. For example, his foundation's largest gift--$264,631--was used to renovate a fountain outside the windows of Trump's Plaza Hotel, hardly a charitable cause. In 2007, he used the foundation to buy a six-foot-tall painting of himself, for $20,000, which wound up hanging on a wall in Trump's private golf club in Briarcliff Manor, New York. Trump has also used his foundation's funds to settle legal disputes involving his for-profit companies, another violation of federal tax laws.

All this suggests that Trump is more Grinch than generous. But the full extent of Trump's stinginess can't be known without reviewing his tax returns, because donors are required to itemize their tax-exempt charitable donations on their annual IRS forms.

Many Americans distrust the IRS as inept or corrupt. Some believe that it favors politically connected taxpayers while harassing ordinary Americans. Presidents have been known to use the IRS to intimidate their critics. Given Trump's indifference to the norms of governance, some fear that he will politicize the IRS the way he's already attacked long-time staffers at the intelligence agencies, the Environmental Protection Agency, and other departments.

Joseph Thorndike, a well-respected tax historian at Tax Analysts, a nonprofit research organization, says that IRS staffers are "dedicated employees who have a hard job to do." Many are demoralized by the constant attacks on their agency by politicians and pundits.

To restore the agency's reputation, "Americans have to feel confident that the IRS is treating President Trump like it treats all other taxpayers," Thorndike says.

Thorndike believes that Congress has a responsibility to make sure that the IRS is treating Trump and his tax returns fairly, without any undue pressure from the president, who also happens to be the boss of the IRS commissioner and of the Treasury secretary, who oversees the IRS. "The only solution is to have some independent agency--like a committee of Congress--look at his returns."

It turns out that Congress has the authority to obtain Trump's tax returns and release them to the public.

It turns out that Congress has the authority to obtain Trump's tax returns and release them to the public. In 1924, Congress adopted Section 6103 of the Internal Revenue Code to investigate possible conflicts of interest within the executive branch of government. It allows three congressional committees--House Ways and Means, Senate Finance, and the Joint Committee on Taxation--to request that the IRS disclose private tax information to the committee. The committee can then review it, and vote on whether to disclose it to the public. It was used in 1974 when Congress reviewed Nixon's returns, and in 2014 when the Ways and Means Committee released confidential tax information as part of its investigation into the IRS's handling of applications for nonprofit status.

In February, Representative Bill Pascrell sent a letter to Ways and Means Committee Chairman Kevin Brady asking that the committee to obtain ten years' worth of Trump's tax returns from the IRS.

"There is not one person on this committee who can say absolutely that there is no economic relationship between the president of the United States and investments in Russia," Pascrell said at a committee meeting. "Not one. Because we don't know. Let's do our job. This is checks and balances, Mr. Chairman."

Not surprisingly, Brady refused. In fact, it is unlikely that a GOP-led Congress will utilize its power to get Trump's tax returns. But when GOP Congress members went home during the February recess, many were met at town hall meetings with large numbers of angry protesters--many of them mobilized through the Indivisible website--demanding that they protect Obamacare, oppose Trump's plan to defund Planned Parenthood, and force Trump to release his tax returns. In rural Arkansas, a combative crowd of close to 2,000 people confronted Senator Tom Cotton at a town hall at Springdale High School, including frequent chants of "tax returns," referring to Cotton's defense of Trump not releasing his documents.

On February 22, Senator Susan Collins of Maine said she was open to using a subpoena to investigate Trump's tax returns for potential connections to Russia--the first Senate Republican to do so.

A number of Trump's supporters want the kind of information that has been traditionally provided by presidents.

"This isn't strictly a partisan issue," said George Yin, a University of Virginia law professor who worked on the Senate Finance Committee staff and served as chief of staff of the congressional Joint Committee on Taxation. "A number of Trump's supporters want the kind of information that has been traditionally provided by presidents. This is simply about good government."

IF THE DEMOCRATS WIN A MAJORITY in either the House or Senate next year, they could vote to obtain Trump's returns. But some observers believe that with Trump's poll numbers tanking, some Republicans on these three key committees might soon have a change of heart.

"I think the Senate [Finance Committee] might be more promising. The majority is narrower. Some Republican senators may peel off," said the University of Virginia's Yin. "All you need is two Republicans on the Finance Committee to shift control. I don't rule out a positive vote before the end of the calendar year."

Harvard Law School Professor Lawrence Tribe isn't waiting for Congress to act. In January, he and a team of well-respected Constitutional scholars and former White House ethics experts filed a lawsuit on behalf of Citizens for Responsibility and Ethics in Washington (CREW), a liberal government watchdog group, accusing Trump of being in violation of the Constitution's Emoluments Clause. The legal team--which in addition to Tribe includes Norman Eisen (an ethics lawyer in the Obama administration), Richard Painter (who held the same job in the George W. Bush administration), Zephyr Teachout (a Fordham University law professor), Erwin Chemerinsky (dean of the University of California-Irvine law school), and Deepak Gupta, a prominent Supreme Court litigator--intends to ask for Trump's federal tax returns in order to gauge what income, loans, or other payments he has received from foreign governments.

The suit is asking a federal court in New York to stop Trump from taking payments from foreign government entities. These include loans to Trump's businesses from banks controlled by foreign governments, leases in Trump's office buildings, and spending on Trump's hotels and golf courses. For example, the government of China rents space at Trump Tower in New York and is a major lender to a New York office building that is part of Trump's real-estate holdings. The major obstacle is whether the courts will rule that CREW has standing to file the suit.

In a recent article, Fordham University Law School professor Jed Shugerman argued that attorneys general in states where Trump has business operations, including New York and others, have the authority to sue corporations that may be acting against the public interest, including violations of the Constitution's Emoluments Clause. Such suits could give the state AGs access to Trump's tax returns, which they could then provide to one of the congressional committees under Section 6103 of the tax code.

Congress could, of course, pass a law requiring all presidential candidates, or at least all presidents, to release their federal tax returns. It is unlikely that the current Republican-controlled Congress would do so, or if they did, that Trump would sign it.

If Congress won't act, and the federal courts won't insist that Trump show his tax returns to Tribe's team or others who might sue for their release, there's only one alternative if the public is ever going to get a look at Trump's tax records: a leak to the media from within the IRS or Trump's own lawyers and accountants.

A leak of Trump's tax records could be as big as the Pentagon Papers in terms of shaking things up in Washington, D.C.

The Pentagon Papers was the name given to a secret Department of Defense report about American military and political involvement in Vietnam from 1945 to 1967, prepared at the request of Secretary of Defense Robert McNamara in 1967. Military analyst Daniel Ellsberg--a former Marine Corps officer who had worked on the study and was an early supporter of the war--had a change of heart. He believed that release of the Pentagon Papers could help shift public opinion against the war. He secretly photocopied portions of the 47-volume, 7,000-page report and in March 1971 gave it to TheNew York Times and then TheWashington Post, which published several articles based on its findings.

The Nixon administration tried to block its publication on grounds of national security, but was overruled by a 6-3 decision of the Supreme Court, which ruled that its publication was justified under the First Amendment's protection of freedom of the press. Portions of the Pentagon Papers themselves were made public by Senator Mike Gravel of Alaska, an outspoken critic of the Vietnam War, who read them aloud in a Senate subcommittee hearing.

Publication of the Pentagon Papers was a turning point in the anti-war movement and ultimately led to Nixon's resignation.

Publication of the Pentagon Papers was a turning point in the anti-war movement and ultimately led to Nixon's resignation. The leak persuaded Nixon that there was a liberal conspiracy against him within the government and the media. He was determined to plug the leaks and find the culprits. His administration indicted Ellsberg and an alleged accomplice, Anthony Russo, on criminal charges including conspiracy, espionage, and stealing government property.

The trial ended in a dismissal of the charges after prosecutors discovered that Nixon had approved a secret team--the White House Special Investigations Unit, dubbed "the plumbers"--to burglarize Ellsberg's psychiatrist's office in September 1971 in order to find information that would discredit him. The next year, plumbers E. Howard Hunt and G. Gordon Liddy were involved in the break-in at the Watergate building that, once uncovered by TheWashington Post, galvanized growing support for Nixon's impeachment. Instead, he resigned in 1974.

Those who want Trump's tax returns exposed to public scrutiny are hoping that there is an Ellsberg-like bureaucrat within the IRS willing to leak the documents to the media. Surely such a caper would trigger enormous controversy, embarrass Trump, and potentially lead to his downfall.

Such derring-do would be much more difficult to pull off than Ellsberg's purloining the Pentagon Papers. Presidential tax returns, which are audited each year, are reviewed by a small number of IRS professionals. Because Trump's returns are by far the most complex of any president in history, the IRS has likely assigned examiners who specialized in auditing very wealthy taxpayers with complicated business activities.

An informed source estimated that a handful of IRS staffers--"more than five, but less than 15"--have access to Trump's returns.

"My judgment is that if there's truly a smoking gun of a serious nature--one that links Trump with Chinese, Russians, Iranians, North Koreans--I wouldn't rule out that there's someone within the IRS who would leak his returns," the source said.

The perpetrator would have to be willing to risk ending his or her career with the federal government and even spending time in prison. But in a recent article on TaxProfBlog, Gregory Klass, a law professor at Georgetown University, argues that a provision of the federal tax code allows "whistleblowers" to share federal returns with Congress if "such person believes such return or return information may relate to possible misconduct, maladministration, or taxpayer abuse." The narrow interpretation of that provision would apply only to misdeeds by the IRS, but a judge with a broader interpretation could apply it to "misconduct by a taxpayer who happens also to be a high-ranking federal official," Klass wrote, thus allowing the IRS whistleblower to avoid prosecution and penalties.

"I think it's incumbent on all lawyers worried about the president's recent actions, as well as broader questions such as violations of the Emoluments Clause, to use the tools at their disposal to ensure that the president is acting within the law," said Klass in an interview. "That includes thinking creatively about new or forgotten legal tools."

A leak could also come from within Trump's own operation--the people who prepare his tax returns. According to TheNew York Times, whoever leaked Trump's 1995 tax returns to the paper sent them from New York City, according to the postmark on the documents. The return address claimed the envelope had been sent from Trump Tower.

Whomever leaks Trump's tax returns would have to strongly believe that bringing them to public scrutiny serves a higher purpose, including protecting our democracy from a president with little respect for the Constitution, the separation of powers, and the rule of law. The number of people who share that belief is growing every day.

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