One of the most dishonest lines of argument to emanate from Trumpland in the last couple of years is that such-and-such an issue “was already litigated during the election.”
That’s a statement that others have used, and that can from time to time be true. For example, if an election is clearly fought over a particular issue, and the result is overwhelming, then the winner and his people can rightly say that the issue was litigated at election time. FDR’s handling of the economy was indeed litigated in the 1936 election, as was Ronald Reagan’s in 1984.
But nothing was “litigated” in 2016. First of all, the voters chose Hillary Clinton, by a hefty 2.8 million votes. Donald Trump benefited from a friendly geographic distribution of his 2.8 million fewer voters. So for anyone to say that “voters” came down on Trump’s side of any question in November 2016 is a lie. Voters did not. Electors did.
Second, there was no great defining issue of the 2016 campaign. Trump managed to convince the bare necessary minimum of people that Hillary Clinton was as corrupt as he was, which was a titanic lie, but enough people bought it. If the outcome was a vindication of any Trumpian argument, I suppose we could say it was that people agreed to try an outsider-businessman who promised to “drain the swamp,” but again, even that is a hard argument to make since he lost the popular vote.
But none of this stopped White House Chief of Staff Mick Mulvaney from saying on TV on Sunday that Democrats will never see the president’s tax returns. “Never—nor should they,” Mulvaney said on Fox News Sunday. “That’s an issue that was already litigated during the election… The Democrats are demanding that the IRS turn over the documents, and that is not going to happen, and they know it.”
Surreal. Voters have seen the tax returns of every major-party presidential candidate going back almost 50 years. Except one. Well, two—Bernie Sanders, which is a whole ’nother issue, but not one for today.
It’s outrageous that Mulvaney would talk like that. This is a matter of basic democratic accountability, which Mulvaney obviously considers to be a presumptuous affront. So it will go to the courts, as with so many other matters on which Trump is the first president in a long time (tax returns) or in some cases ever (the emoluments clause) to be so brazen as to flout the customs, rules, and laws and say “sue me” in the same thuggish way he used to say it to small contractors who had the misfortune to be chosen to do business with his bankrupt casinos.
Also outrageous was the response of Trump attorney William Consovoy. He’s not being paid his salary by you and me, so on that basis his words are mildly less offensive than Mulvaney’s, but they’re even more shocking and dishonest. “It would be a gross abuse of power for the majority party to use tax returns as a weapon to attack, harass, and intimidate their political opponents,” he wrote last week. “Once this Pandora’s box is opened, the ensuing tit-for-tat will do lasting damage to our nation.”
What? This “Pandora’s box” is being opened only because Trump is the first president in half a century not to voluntarily make public his returns voluntarily. There’s a really easy way for him and his lawyers to keep Pandora’s little box tightly shut.
And anyway, to the extent that voters were able to express an opinion about Trump’s tax returns in 2016, they expressed one loudly and clearly. They wanted to see them. In one representative poll, from August of that year, 74 percent of voters said Trump ought to release his tax returns. This included 62 percent of Republicans.
The number isn’t always as high as 74 percent, but it’s always above 60 and usually well above 60. In addition, around two-thirds of Americans say that it’s “important” that Trump release his returns. People continue to say this, right up to this month. So there is no credible sense in which this issue ended with the election of the man who received fewer votes than his opponent.
And there would seem to be no credible grounds on which the IRS can refuse House Democrats’ request for the tax returns. The relevant section of the IRS code, cited in a Center for American Progress memo last week, looks awfully clear to me: “Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary [of the Treasury] shall furnish such committee with any return or return information specified in such request.” It goes on to impose the condition that absent taxpayer consent, the committee has to receive the material in closed session.
Congress doesn’t even have to state a reason, although in this case the main reasons are obvious: to see if Trump’s financial entanglements create any conflicts of interest, and to see if he’s been cheating Uncle Sam. Check that; not if. How much. We already know thanks to The New York Times that earlier in his career he cheated the government out of nearly half a billion-with-a-b in taxes. We just don’t know how much he’s cheated us out of lately.
Finally, of course, everyone knows that Trump’s audit excuse is another lie. The IRS has said there’s no such stipulation.
So much is going to turn on how federal judges—and probably eventually Supreme Court justices—end up ruling on these things. Trump has corrupted everything in his path (well, except the political party that was already corrupt enough to embrace him). Our last hope is that judges can still read law. We’ll see soon enough.