Editor’s Note: Edward J. McCaffery is Robert C. Packard trustee chair in law and a professor of law, economics and political science at the University of Southern California. He is the author of “Fair Not Flat: How to Make the Tax System Better and Simpler” and founder of the People’s Tax Page. The opinions expressed in this commentary are his own. View more opinion at CNN.
If you apply for a federally backed mortgage, you must turn over your tax returns. If you are a minor applying for student loans you must turn over your (and your parents’) tax returns. If you are being sued for divorce or over child support you must turn over your tax returns. If you are using online software to do your taxes – and remember to file by July 15! – you likely already have turned over your tax returns to the web. And if you are Finnish, your tax information gets turned over to the public for you every November 1, locally known as National Jealousy Day.
But if you are the President of the United States, and the Supreme Court tells you that your accountant must – maybe – turn over directly relevant tax returns to a legitimately appointed criminal grand jury of a sovereign authority, New York City? You have a Twitter tantrum.
“The Supreme Court sends case back to Lower Court, arguments to continue… . now I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration!” So tweeted the most powerful man on earth, taking a break from bungling the coronavirus crisis moments after learning that, following Supreme Court rulings in Trump v. Vance and Trump v. Mazars, he might have to turn over his tax returns, at least to the Manhattan District Attorney, if not to Congress.
The President is correct about one thing in his tweet. Arguments will continue. Even in the Vance case, from New York, the Supreme Court sent the case back to a lower court and will allow the President and his lawyers to argue on more narrow grounds against the subpoena. In the connected matter, the court also remanded cases involving Congressional committee subpoenas. If and when the New York prosecutor gets access to the returns, the public likely will not; this would be part of a strictly confidential grand jury process. Perhaps most importantly, none of this will get resolved before November’s election.
Thus the insanity will continue. Years of delay, millions of dollars in expense, the rule of law stretched to the breaking point, all to attempt to prevent our elected President from doing what a great many of us have already done, whether willingly or without choice.
The point of Justice John Robert’s wonderfully written opinion in Vance, which goes back to the 1807 trial of Aaron Burr, is that the President is not above the law. Grade school students in America are supposed to know that. Maybe it is time to pass simple laws that make this simple point even simpler for a President who does not like to read much.
Two laws I humbly suggest:
One, every President must disclose his or her tax returns.
Two, every President must wear a mask in public just like everyone else.
That wouldn’t make us Finland. But it would save our courts some time, and maybe our country some lives.
