The state of New York got slapped down by a federal judge Monday for its efforts to compel President Trump to release the last eight years of his tax returns to the state prosecutor. Before that, another federal judge slapped down the state of California for trying to require that Trump release the last five years of his tax returns in exchange for appearing on the state’s primary ballot.
The president has broken with precedent in that he has not publicly released his tax returns, while most other presidents before him have. But there is no constitutional requirement that a presidential candidate do so. The qualifications a president must satisfy are few in number (35 years old, a natural-born citizen, a resident of the U.S. for fourteen years) and releasing private financial information is not among them.
Beyond all that, the Constitution itself makes it clear that no one – no individual, no state, no court, no branch of the central government – has any right to this information. The 4th Amendment is all the defense the president needs.
The 4th Amendment reads (emphasis mine): “The right of the people to be secure in their…papers…against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause…” As with each of the first ten amendments, the backstory is found in our contentious relationship with the central government at the time of the Founding Fathers, the king of England and its parliament.
At the time our war for independence began, the crown was accustomed to issuing “general” warrants so England’s soldiers could ransack a guy’s house looking for something, anything, which hinted at illegal activity. The Founders decided this was a perfectly wretched way to do things, and consequently declared that no one was allowed to search another man’s house, his person, or his papers unless there was solid evidence of a crime and a reason to believe that evidence of his crime could be found on his person, in his house, or in his papers.
Absent the commission of a crime and absent good reason to believe that evidence bearing on that crime would be found, the government was absolutely forbidden to search a man’s private effects and seize what it wanted. Even the warrant itself had to be specific: “… describing the place to be searched and the persons or things to be seized.”
The Founders declare this provision is a “right” – that is, it is one of the inalienable rights that the Creator has bestowed on men. It is an extension of our God-given right to private property. And since this right is a gift of God, there is no earthly actor or entity that has the moral authority to violate it.
This is a right that belongs to every American citizen, to all of its “people,” every one of them.
This mention of a “right” that belongs to “the people” drives us to the Tenth Amendment, which says that any powers not delegated to the central government (“the United States”) “are reserved to the States respectively, or to the people.” Now a right that belongs to the “people” is a right that a man possesses regardless of what kind of government (federal, state, or local) he may answer to. The Second Amendment identifies another right that is like that. The “right” to “keep and bear arms” is likewise a “right of the people” that no state or city (e.g., Chicago) can take away.
The right of the people to be secure in their papers means, to be precise, that Trump possesses a right the federal government cannot take away, and, more to the point, neither can any state, including the state of New York and the state of California.
New York wants his returns because they think there is something hinky about the money that Trump paid to two women to conceal his affairs with them. The problem here is that while what he did was tawdry and reprehensible, it was not illegal. Neither New York nor Congress, for that matter, is entitled to rummage through his papers hoping they can find an illegality of which they are currently unaware. The Constitution is emphatically not a fishing license.
Now Donald Trump is an American. He has these rights not because he is the president but because he is an American citizen. He possesses each of these rights just as surely as you and I do. He doesn’t forfeit any of his constitutional rights when he assumes the office of the presidency.
The president’s enemies yammer that the president is not above the law. That’s true. But neither are they.