Let’s talk about Trump’s secrets, what he doesn’t want us to know about. Not secrets that may not exist – like his secret plans to deal with ISIS, North Korea or unemployment. Those might be secret as he claims because there’s a problem in revealing them. Or they might be secret because there’s nothing to reveal, they don’t really exist – but calling them secret makes it sound OK. No I mean secrets we can be quite sure really do exist – his tax returns.
The Federal Rules of Civil Procedure suggest what we can infer from his absent tax returns – returns filed by many honest presidential candidates, Hillary Clinton included. Federal Rule 37 (b) is titled “Failure to Comply with a Court Order.” When a litigant doesn’t comply with an order to produce records, a federal court can effectively decide the case against the recalcitrant party, or, among other options [quote]:
(i) direct[] that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibit[] the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence
Let’s put that in English. A Court may order that failure to produce evidence is an admission that the facts are what the other party says they are.
So by this standard what can we assume that the failure to release his returns means?
The New York Times noted that: “He is running for the White House partly as a business wizard,” and asked “is he really as rich and talented as he boasts?” Mr. Trump’s tax returns might disclose that he is bankrupt, far from the billionaire he claims to be, that, contrary to his chest pounding assertions, Mr. Trump is a financial fool with little to show for his shenanigans. Is it fair to take that as proven by the standards courts use for undisclosed evidence?
The New York Times asked: “Has he truly no conflicts of interest in Russia, whose computer hackers he has bizarrely invited to spy on Hillary Clinton, his campaign rival?” And Media Matters adds that Mr. Trump’s tax returns “could show Trump’s ties to Russia.” They could show that Russia is bankrolling his campaign, that Trump has an enormous conflict of interest in his dealings with a foreign adversary. Indeed, would they show that Trump is disloyal, a Russian agent? Is it fair to take that as proven by the standards courts use for undisclosed evidence?
His tax returns might disclose that Mr. Trump has defrauded many other people by misrepresenting his assets. Is it fair to take that as proven by the standards courts use for undisclosed evidence?
His tax returns might disclose that Mr. Trump has failed to pay his taxes, engaged in tax fraud, pays less than Hillary does or that he has parked his money abroad. Is it fair to take that as proven by the standards courts use for undisclosed evidence?
His tax returns almost surely will disclose that he has a secret he doesn’t want us to know because it will destroy his public image and his claim to people’s votes in November.
Trump’s failure to produce his tax returns is not the minor side-show he tries to make it. It gets to the fundamental fact that he is all sound and fury, a loudmouth, with nothing to offer, nothing to sell but empty boasts.
Or should we use his language and start talking about “crooked” Donald?
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. Steve maintains a blog: constitutionalismanddemocracy.wordpress.com
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