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There's a new pathway to Trump's tax returns

Rick Newman
Senior Columnist

You’ve probably tuned out much of the noise involving who’s suing Donald Trump (and vice versa), but a fresh lawsuit may pose the strongest likelihood yet of something big happening–the president releasing his tax returns.

One catch: It might not happen till 2021.

Attorneys general for Maryland and the District of Columbia sued President Trump on June 12, claiming Trump’s ownership of a DC hotel is harming Maryland and DC taxpayers. The suit, like others, claims Trump is violating the emoluments clause of the US Constitution, by exploiting his position as president to enhance personal profits. But unlike two other suits making similar claims, the DC/Maryland case makes a plausible argument that Trump’s actions are harming others. That is required for the case to make it to the discovery phase, which is where the battle over Trump’s tax returns would be fought. The two other cases have longer odds of making it that far.

Trump owns the Trump International Hotel, Washington, DC, midway between the White House and the Capitol. Business has been good since Trump became president—so good that DC and Maryland claim customers who would otherwise hold big events at nearby convention centers are choosing the Trump property instead. “The District and Maryland suffer direct financial harm in their capacity as proprietors of businesses that compete with the defendant’s businesses,” the lawsuit argues. “Businesses owned by him and/or his affiliated enterprises attract customers and divert them away from businesses that the District and Maryland own, license, or tax.”

That notion of harm is crucial for a lawsuit to make headway through the courts. Trump is certain to claim all lawsuits relating to the emoluments clause lack “standing,” which means they must demonstrate the plaintiff has a stake in the dispute and isn’t just displeased with the defendant’s behavior. The other two lawsuits, including one by 200 Democratic members of Congress, rely on novel interpretations of harm, and could get thrown out by an appeals court. But the DC/Maryland lawsuit is more straightforward.

“They have a strong case on standing,” says Bob Goulder, a lawyer for the publishing firm Tax Analysts. “I’d bet there’s greater than a 50% chance they can overcome a standing objection. I see this case actually going to trial.”

Going after Trump’s tax returns

If courts rule that the suit can proceed, it would then enter the discovery phase, at which point the DC and Maryland attorneys have said they’d ask for Trump’s tax returns. If Trump’s company, the Trump Organization, were a public company, then Trump’s personal returns would be irrelevant and there’d be no reason to request them. The company is private, however, with Trump as majority owner, which means his personal tax returns are, in effect, company financial statements directly relevant to the case. “The only way to get a full picture of the entity’s financials is to look past the schedules the entity files and look at Trump’s own tax returns,” Goulder says. “His own balance sheets or income statements become the entity’s balance sheets or income statements.”

If courts ordered Trump to turn over his tax returns, Trump’s lawyers would then likely request a protective order keeping them private, with a lively debate ensuing. Trump’s lawyers could argue that the case is politically motivated—since the Maryland and DC governments are both run by Democrats—and besides, a business owner’s personal returns aren’t normally part of the public domain. The plaintiffs might counter-argue that it’s been customary for the last 40 years for presidents and presidential candidates to release their returns, with Trump being the only prominent exception. If courts did grant a protection order keeping them private, there’s always the chance somebody could leak the returns, at the risk of professional censure, fines or worse.

That’s a lot of legal activity, and Trump’s lawyers would probably toss every conceivable roadblock in front of the plaintiffs. So how long might this all take? First would come a Trump appeal on standing, which would go to a federal appeals court, and if it ruled the suit can go forward, to the Supreme Court. The Supreme Court wouldn’t necessarily have to hear the case, but given the high stakes, there’s a good chance it would.

Cases at the federal appeals court typically take 6 to 12 months, so if that court ruled in favor of the plaintiffs on standing, Trump’s team might not appeal to the Supreme Court until the session that begins in the fall of 2018. If the Supremes hear the case, they might not rule until the customary end of the session around early June of 2019.

If the case gets that far, appeals on discovery and the release of Trump’s tax returns would follow a similar path, through the federal appeals court and then the Supreme Court. This could take until early June of 2021. Trump has said he plans to run for a second term in 2020, though some analysts aren’t even sure he’ll finish his first term. So it’s not clear how relevant his returns would be during the first term of whoever gets elected in 2020. Many Trump critics, of course, say better late than never. That may be what they get.

Confidential tip line: rickjnewman@yahoo.com. Encrypted communication available. 

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Rick Newman is the author of four books, including Rebounders: How Winners Pivot from Setback to Success. Follow him on Twitter: @rickjnewman