By Cliff Montgomery – Apr. 26st, 2019
* A note: On Mar. 31st, the Spark promised to deliver this article to our readers on Apr. 5th. Since we are only now delivering it to our readers, it is quite clear we missed our deadline.
We are truly sorry for that mistake. We’ve never missed a deadline before – and we have no intention of ever missing another.
Again, we are very sorry if this error caused our readers any problems.
Donald Trump doesn’t seem to understand that he’s the president of the United States. For the first time in his life, Trump works for others now.
He acts as if he is once again a major investor of a failing casino. He is certainly working to keep his financial records to himself.
“Unlike past presidents in recent decades,” Reuters declared today, “Trump has refused to make public his tax returns, raising questions about what is in them.”
“Democrats are probing Trump’s past business dealings and possible conflicts of interest posed by his continued ownership of extensive business interests,” continued the wire service.
“Treasury Secretary Steven Mnuchin failed to meet a congressional deadline on Tuesday for turning over Trump’s tax returns to the House tax committee,” Reuters pointed out, thus “setting the stage for a possible court battle between Congress and the administration.”
“Mnuchin said he planned to make ‘a final decision’ on whether to provide Trump’s tax records by May 6,” stated the wire service.
“Legal experts said House Democrats could vote to hold Mnuchin or IRS Commissioner Charles Rettig in contempt of Congress if they ignore a subpoena,” added Reuters, “as a step toward suing in federal court to obtain the returns.”
And that’s not all. Yesterday, “Trump’s personal attorneys sued Oversight Committee Chair Elijah Cummings over Cummings’s subpoena of Trump’s accounting firm seeking his personal financial records,” declared Vox.
So what are Trump’s privacy rights as a U.S. president? On Mar. 15th, a ‘Legal Sidebar’ on this thorny matter was released by the Congressional Research Service (CRS). The CRS is charged with creating easy-to-understand, non-partisan studies of current issues for members of Congress.
See our article on Mar. 31st to read the quotes we offered from this CRS study regarding Congress and “its ‘power of inquiry’ for the purposes of conducting government oversight.”
Below, the Spark quotes a section of the CRS report that defines the privacy rights of a sitting president.
Privacy Rights
“Whereas the previous section discussed the boundaries of Congress’ investigative power, this section discusses grounds upon which legislative inquiries may be impeded by protections available to the subject of the inquiry.
“Because that subject is the President, questions regarding the scope of executive privilege may be raised. That privilege, at least regarding the President’s generalized interest in preserving the confidentiality of his communications, has been interpreted by the Supreme Court as ‘limited to communications’ made ‘in performance’ of the President’s ‘responsibilities of […] office’ and ‘in the process of shaping policies and making decisions.’
“Because tax returns, which are required to be filed for everyone who has reportable income above a certain threshold, appear to lack a clear nexus to either presidential responsibilities or of presidential decision-making functions, executive privilege would not seem to provide a legally compelling reason for denying a committee access to the President’s tax records.
“However, even if executive privilege does not apply, the disclosure of tax returns to Congress might still be resisted by invoking privacy rights held by the President as a taxpayer.
“In two cases decided during the 1970’s the Supreme Court referred to a constitutional ‘interest in avoiding disclosures of personal matters,’ which has come to be known as a ‘right to informational privacy.’
“Although the Supreme Court has questioned the continuing vitality of this right, it remains good law in the lower courts. In applying this right to informational privacy, courts have generally conducted a balancing test to determine whether legitimate governmental interests outweigh the relevant privacy interests.
“For example, in one of the Supreme Court cases recognizing a right to information privacy, Nixon v. Administrator of General Services, the Court reviewed a challenge to a provision of the Presidential Recordings and Materials Act that required federally employed archivists to process and screen presidential papers and tape recordings of the former President.
“In upholding the act against a challenge based on President Nixon’s interest in informational privacy, the Supreme Court described the law as a reasonable balance between the government’s interest in preserving records relating to the former President’s performance in office and President Nixon’s interest in the privacy of personal information unrelated to his government service.
“In reaching this conclusion, the Court noted that the bulk of the information at issue pertained to the ‘official conduct of his Presidency,’ and concluded that any invasion of privacy was mitigated because non-pertinent information would be returned to the former President without public disclosure.
“Relying on Nixon, federal courts of appeals have generally upheld state laws requiring government officials to release certain financial information.
“For example, in Plante v. Gonzalez, the Fifth Circuit [Florida] upheld a state law requiring state legislators to publicly disclose personal financial information, on the grounds that the mandated disclosure advanced the government’s legitimate interest in deterring corruption and conflicts of interest, and created public confidence in state government. The court viewed these interests as sufficient to overcome the legislators’ interests in financial privacy, which were limited by their voluntary decision to run for office.
“Similarly, in Barry v. City of New York, the Second Circuit found that a city ordinance requiring city officials to submit financial disclosures to the city clerk, where they could be subject to public inspection upon request, was supported by the same legitimate government interests as in Plante, namely the deterrence of corruption and conflicts of interest, and the enhancement of public confidence in governmental integrity.
“With respect to the disclosure of the President’s tax return information to Congress, it is likely that Members seeking the information would assert the same government interests that the plaintiffs asserted in Plante and Barry, including deterrence of corruption, detection of conflicts of interest, and enhancement of public trust or faith in government.
“Those seeking access may also argue the President’s voluntary choice to run for office diminished any privacy interest he might assert in his tax returns.
“In response, the President may argue that the amount of personal information in a tax return that is not related to his performance in office or another legitimate government interest should weigh against disclosure.
“While not dispositive, such an argument might be stronger with respect to those tax returns from before his candidacy or time in office.
“Additionally, the President might argue that the chance of broader disclosure of such tax return information to the House or the Senate under Section 6103 exacerbates any invasion of privacy, because a larger group of persons would have access to the information.
“However, if a court were to adopt the analysis from Plante and Barry, the President’s privacy interests would not appear to be sufficient to overcome a legitimate governmental interest in his tax return information.”
