Journalism – Page 3 – From the Peanut Gallery

COVID-19 and Emergency Powers IV – The Wrap-Up

Three years ago tomorrow, March 21, 2020, NJ governor Philip Murphy issued Executive Order 107, which mandated that people stay at home. Although it was a drastic step, the COVID pandemic was still pretty new, deaths were mounting, and we did not know how to handle it. As I recall, it was thought that the time from exposure to severe symptoms did not exceed two weeks, so I expected that the restrictions would last two weeks within which time the spread of the virus would be controlled. As we know, it didn’t work that way.

Executive Order 107 was just one of many emergency measures adopted by the executive branch under powers delegated for use in an emergency (or perhaps not((For example, in the early days of the COVID pandemic, Bergen County Executive James Tedesco ordered all malls in the county to close until further notice in order to prevent the spread of the disease. When asked about his legal authority to shut down private businesses, Tedesco responded: “I have the moral authority.” NJ coronavirus: All Bergen County malls must close (northjersey.com). Because Tedesco’s closure order was quickly subsumed by Governor Murphy’s, the question of legal authority was never authoritatively tested.))) but justified on the basis of an emergency.¹

My essential thesis is this: In the beginning the COVID-19 pandemic was an emergency requiring urgent action, and this justified the invocation of powers delegated for such events. After the initial weeks or months, COVID, although still a major problem, no longer justified the routine exercise of emergency powers. It remains dire but is not urgent. Our legislatures could assemble, personally or virtually, and pass laws to deal with the situation. While I have often criticized COVID emergency measures as “rule by decree,” I am not an anti-vaxxer² nor did I oppose the concept of requiring the wearing of masks in public.((Although it should have been put on a legal foundation with law enforcement rather than business owners responsible for enforcement of the mandate.)).

The problem, as many governors and other wielders of executive authority saw it, was that the legislators would not pass the right laws, or do it quickly enough. And so many COVID emergency declarations have remained in effect even though, for most of us (thanks in large part to rapidly developed vaccines), the daily routine is now much like it was before the pandemic. Emergency declarations allow the executive to bypass pesky limitations (described as “unnecessary red tape or bureaucratic obstacles”) on their ability to do what they want.³

Recently the Washington Post published a story by Lauren Weber and Joel Achenbach entitled “Covid backlash hobbles public health and future pandemic response,”((The story appears at https://www.washingtonpost.com/health/2023/03/08/covid-public-health-backlash/ (paywall) and is reproduced by MSN at https://www.msn.com/en-us/news/us/covid-backlash-hobbles-public-health-and-future-pandemic-response/ar-AA18mBh, and was published in the print by the Star-Ledger on March 16, 2023, at page H1.)) in which the authors bemoan the (mostly) Republican response to some of the COVID measures.((The always understated Fox News has this response to the story: Washington Post torched on Twitter after complaining health officials have limited powers: ‘Medical fascism’.)) The point of this story is that opposition to overstepping in the COVID emergency and support for the separation of powers will lead to an inability to deal with the next pandemic.

There will come a time when something else requires an emergency response. Before that happens is the time to give serious thought to what authority is to be given to the executive branch and administrative agencies, and for how long. Declaring an emergency when the legislature does not agree with the executive’s policy preferences cannot be the knee-jerk response. The emergency measures must be tailored to the emergency, which cannot be the excuse for at best tangentially related policy preferences, like widespread voting by mail and student loan forgiveness.((See, for example, Elizabth Goitein’s comments which I quoted in The Misuse of Emergency Powers: “[The] purpose [of emergency powers] is to give presidents a short-term boost in power in situations that Congress cannot have foreseen (because they arise suddenly and without warning) and that Congress is ill-suited to handle (because they require immediate or highly nimble responses). Emergency powers are not intended to address longstanding problems, no matter how serious. Nor are they meant to authorize permanent or long-term policy solutions that Congress itself could provide but has chosen not to.”)) So long as our legislators can assemble, they get to make the policy decisions. As I concluded a post entitled What’s More Important: Process or Substance? almost two years ago, “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.”

Jay Bohn

March 20, 2021

I have previously been critical of the misuses of such powers: COVID-19 and Emergency Powers; COVID-19 and Emergency Powers II – Not Much Has Changed; COVID-19 and Emergency Powers III – Still Not Much Has Changed; and The Misuse of Emergency Powers. [↩]
It is Time for Vaccine Passports [↩]
As I noted in Superstorm Sandy, Ten Years Later: The State of Emergency Continues, we are (or as of 2022 were) still in the state of emergency declared in connection with Superstorm Sandy in 2012 for exactly that reason. [↩]

The Best Response to Misinformation is Accurate and Detailed Information

Yesterday NJ.com published an editorial “It’s not just Fox. Conservative media is lying to you.” I have no problem with the comments about Fox; the revelations in the Dominion Voting Systems lawsuit are pretty compelling, for example. While it may be true that “other conservative media channels . . . trash the basic rules of fairness in journalism,” the editorial neither names such “other” channels nor provides any examples.

The editorial then proceeds to compare the situation to two well-known cases where “mainstream”((“Mainstream” is NJ.com’s word. I have described such outlets as “professional media” to distinguish them from me, the hobbyist.)) media (the Washington Post and the New York Times to be exact) had to apologize for fictionalization by their reporters.

The purveyors of news should be accurate, and I am in no way defending Fox, but I do not know who these “26 leading right-wing outlets” are. I doubt very many of them provide significant news reporting. I think I’ve said this before((For example, here and here.)): a significant proportion of the “news,” even from “mainstream” sources is opinion, whether labeled as such or not. No doubt there are many “left-wing outlets” who also ignore inconvenient facts.

At the risk of repeating myself: news stories should be accurate and detailed. How many “mainstream” news outlets provided detailed reports of President Trump’s claims about widespread vote fraud? They merely labeled such claims as “false,” (which they are, but the point is give us the facts, don’t just expect the reader to trust your conclusions).

Jay Bohn

March 13, 2023

Mixed Bag in Media Review

I have recently seen a couple of examples of journalism that are worth some comment.

First the good. On Friday CNN.com published another article fact-checking a speech by President Biden.((I previously lauded an earlier piece by the same author, Daniel Dale.)) One begins to wonder if the President’s speechwriters are just this sloppy or really dishonest. Either way, these fact checking articles are examples of good journalism.

Now the bad. Does anyone remember the magazine Newsweek? Back in ancient times when I was in school (the 1970s and 1980s) it was owned by the Washington Post and was a rival to Time as a national weekly news magazine. It fell on hard times and has gone through a succession of owners, spending some time as on-line only, but now it’s back in-print as well. Anyway, last Friday the on-line version published an article entitled “Supreme Court Reconsiders Case to Reinstate Trump.” Okay, you got me, I clicked. It turns out that the “case”((Brunson v. Adams, docket number 22-380.)) is based upon the theory that their oath of office required that the members of the 117th Congress investigate unidentified claims of foreign influence in the presidential election. The plaintiff apparently names all the members who voted to certify that election as defendants, along with President Biden, Vice President Harris, and former Vice President Pence, and is seeking their removal from office and ineligibility to hold office again and the reinstatement of President Trump. It is one of hundreds of petitions for certiorari that were denied without further comment in the order list issued by the Supreme Court on January 9, 2023.((The order list resulted from the Court’s conference held on January 6th, which date the plaintiff believed betokened some significance.)) The plaintiff has filed a petition for rehearing, which was unsurprisingly denied when the order list resulting from the Court’s conference last Friday was issued on Tuesday.

Although the Newsweek article is factually accurate, it lacks crucial context and the headline’s choice of wording allows for the reader to believe that the Court has some interest in the case. The article is, in a word, misleading. There is a relatively low bar for a disappointed litigant to file a petition for certiorari, a modest filing fee and printing costs. The overall chance of any petition’s being granted is less than 3%,((One statistic I saw indicated that the average applicant to Harvard has a chance of admission that is twice as high.)) with pro se cases less likely to achieve the votes of four justices which is required for a grant.

Newsweek was not the only on-line news source to write about the denial of certiorari in the Brunson case. The Hill reported it on January 9, 2023, under the tile “Supreme Court declines to hear long shot 2020 election case” with a lot more background.

Now I’m not saying that the Newsweek article was intentionally misleading,((Never ascribe to malice what is adequately explained by stupidity.)) but professional journalists should have a bit more working knowledge of how our court system works. If, as I suspect, the Supreme Court disposes of the student loan cases on standing grounds, it will be inaccurate to describe the decision as “upholding” the forgiveness program, as the Court will not have reached the merits. Accuracy is important.

Jay Bohn

February 23, 2023

There is a Debate on the Value of Objectivity in Journalism; Do the Two Sides Mean the Same Thing?

In his column yesterday, Star-Ledger/NJ.com columnist Paul Mulshine wrote about a recent study by Leonard Downie, Jr., and Andrew Heyward of the Walter Cronkite School of Journalism and Mass Communication at Arizona State University that concludes that objectivity in journalism should no longer be a goal. Based upon Mulshine’s comments about the study, it seems to support all of the trends in professional journalism that I have argued against. It seeks to “move beyond accuracy to truth . . . .”((This reminds me of the scene in Raiders of the Lost Ark when Professor Jones tells his class: “Archaeology is the search for fact … not truth. If it’s truth you’re interested in, Dr. Tyree’s philosophy class is right down the hall.”)) One of the sources of the study is quoted as saying “I think that part of what’s happening is (that) now we’re allowing people to tell their truth. As long as our facts are correct, they can tell their truth.” (parenthesis in original, emphasis added).

After reading the study, I certainly can’t say that I understand it. I wonder if there is a disconnect between what the study means by “objectivity” (and “truth”) and what Mulshine means (which I think is what I would understand it to be).((Of course, Mulshine also says “As a good, old-fashioned newspaper, the Star-Ledger labels opinion as opinion and news as news.” I wish this were the case, but I have many times cited examples where opinions were disguised as news articles: Some Weaknesses in NJ.com’s Arguments Against the SALT Deduction Limit, Your Bias is Showing, Professional Media Need to Take Some Responsibility for “Misinformation”, Whether a Hug or a Handshake, Christie’s Greeting of President Obama During Post-Sandy Visit Did Not “Change” American Politics, Christie’s Criticism of Trump Not New; Don’t Assume It’s in Preparation for 2024, and Supreme Court’s “Free Ride” for Corruption Shows That Laws Are Poorly Written (or that Prosecutors Extending Them to Conduct Not Covered).))

The study and Mulshine’s column both use the term “bothsidesism.” Mulshine’s column links to a post by the Association of Foreign Press Correspondents which provides a definition: “The false balance fallacy, otherwise known as bothsidesism, is the equivocation of two acts unequal in their scope to support the validity of one side of an argument.”((I believe the intended meaning is more clearly set forth in a quotation from Ross Gelbspan within the post: “The professional canon of journalistic fairness requires reporters who write about a controversy to present competing points of view. When the issue is of a political or social nature, fairness – presenting the most compelling arguments of both sides with equal weight – is a fundamental check on biased reporting. But this canon causes problems when it is applied to issues of science. It seems to demand that journalists present competing points of views on a scientific question as though they had equal scientific weight, when actually they do not.”)) Again, it seems that there is a disconnect in what is meant by the term.

This is important stuff. I fundamentally agree with what I see Mulshine as saying: news is about facts. To the extent that Downie and Heyward are asserting that it is preferable to report point of view as news, maybe that’s what “fake news” is. I’m not sure that’s what they’re saying, but their report is less than clear on this point.

Jay Bohn

February 6, 2023

CNN Adds to Laurels with Good Explanation of Standing Issue in Student Loan Case

This is a good week for CNN.com. My most recent post lauded a fact-checking piece and now I’m going to write about a story last Tuesday which gives a good explanation of what I believe will be the basis of the Supreme Court’s decision on the student loan forgiveness cases — the challengers’ lack of standing.

In “The Supreme Court’s student loans case is about more than student loans,” CNN Supreme Court reporter Ariane de Vogue provides a good explanation of the concept of “standing,” which is a limit on the power of federal courts derived from the fact that the Article III, section 2, of the United States Constitution extends the judicial power of the United States only to “Cases” and “Controversies.”((I discussed standing in my November 17, 2022, post Texas Federal Court’s Dash to Invalidation of Biden’s Student Loan Forgiveness Program Likely to be Called Back for False Start.)) For once this is not a hidden opinion piece which introduces a hard-working American facing the impossible prospect of ever paying off student loans and leveraging that emotional appeal into an argument that the Supreme Court should uphold the program for one or another reason unrelated to the actual questions before the Court, with a detour to equate this program with PPP loan forgiveness.((See my August 29, 2022, post Thoughts About Student Loan Forgiveness.))

But, as its title indicates, the article is not just about the fate of Biden’s student loan forgiveness plan. It traces the recent expansion of State standing to Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), which allowed States to sue the Environmental Protection Agency to compel it to regulate greenhouse gases and led to a skyrocketing of “lawsuits brought by state attorneys general challenging actions by the federal government . . . with states making extravagant standing arguments.” Whether that’s good or bad depends upon who’s president.

Jay Bohn

February 2, 2023

CNN Fact Checking an Example of Good Journalism

A few months ago, I said “Misinformation is best combatted by (accurate) information. I thought that was the job of the news media, particularly newspapers. ” Over the past weekend CNN.com published an article fact-checking a recent speech by President Biden. As I said in one of my earliest posts, “Since I expect to use many of my posts to take the traditional media to task for weak or opinionated reporting, it is only fair that I also note good efforts from time to time.”

The CNN article reviewed a speech President Biden gave on January 26 and found that some of the claims “were false, misleading or lacking critical context, though others were correct.” I’m not going to summarize the whole article: you should read it. I will comment, however, on one of the portions of the speech that CNN described as “misleading at best” — President Biden’s boast of the number of people vaccinated under his administration as compared to President Trump’s: “Back then, only 3.5 million people had been – even had their first vaccination, because the other guy and the other team didn’t think it mattered a whole lot.” While CNN points out that the 3.5 million figure is the number of people who had received both shots that constituted “full vaccination” at the time and that 19 million had received the first shot, even the otherwise thorough CNN article fails to mention that as of January 20, 2021, the ability to get a vaccine shot was extremely limited. The Pfizer vaccine was granted emergency use authorization (EUA) only on December 11, 2020, and Moderna’s vaccine received EUA on December 18, 2020. Thus, there was only about a month during the Trump Administration when the vaccine was available. Initially stocks of the vaccines were limited and for some months only older persons, those in certain occupations, and those with particular medical conditions were eligible.((See some NJ.com articles reporting the expansion: “N.J. quietly added 11 medical conditions, including being overweight, asthma, to COVID vaccine eligibility list” (March 3, 2021), and “Big COVID vaccine eligibility expansion starts today. Here’s everyone in N.J. who can now book shots.” (March 29, 2021).))

Jay Bohn

January 30, 2023

News Media Should At Least Get Legal Basics Right

A large portion of my internet surfing involves looking at news sites, including so-called “aggregators” like MSN. Despite the dross, sometimes these sites provide links to interesting stories that don’t show up elsewhere. For example, yesterday there was a story entitled “Supreme Court backs Maine consumer protection law.”¹ The headline piqued my curiosity because I know that the U.S. Supreme Court (which is the supreme court to which the headline refers) has yet to issue an opinion this Term. The story includes four paragraphs about the decision (with quotations), citing in part “court documents” (which turn out to be Maine’s brief in opposition to the petition for certiorari), purporting to report how the Supreme Court ruled. As I suspected, the story misstates what happened.

In 2020 Maine’s legislature passed a law that requires cable companies to provide a pro rata rebate for the month in which a subscriber cancels service, essentially requiring billing for the final month to be on a daily rather than monthly basis. Cable companies challenged the law, claiming that it was preempted((Preemption arises when state and federal laws conflict. Under the Constitution’s Supremacy Clause, federal laws trump state laws.)) by the Cable Communications Policy Act of 1984 which prohibits state regulation of “the rates for the provision of cable service.” The cable companies won at the district court level but lost at the circuit level and sought review in the U.S. Supreme Court by means of a petition for certiorari.((Certiorari was one of the common law prerogative writs whereby a superior tribunal ordered an inferior tribunal to send up its record on a case.))

Let me pause for a moment to explain how “appealing” to the Supreme Court works. The Supreme Court has discretion whether or not to take the vast majority of cases eligible for its review when such review is sought. The “right” to appeal to the Supreme Court is very limited, if it exists at all. The party seeking to have the Court take a case files a petition for certiorari; four justices must vote to grant the writ. Most petitions are denied without so much as a comment, but occasionally a justice may choose to write a brief opinion commenting on the denial or dissenting from the Court’s action granting or denying. The denial of a petition for certiorari has no legal effect beyond that particular case; it does not mean that the Court concludes that the decision below was correct.

So, where were we? Right, the cable companies lost in the court of appeals, so they asked the Supreme Court to take the case. The Court’s docket reflects the following action on January 9, 2023: “Petition DENIED.” The four paragraphs reporting on (and quoting) the Supreme Court’s ruling are inaccurate. Maybe the average American should not be expected to know the ins and outs of Supreme Court procedure, but journalists attempting to report on its activities should be more careful.((Although this post is about media inaccuracies, not the merits of the cable companies’ preemption argument, I do have to comment on a portion of the Maine attorney general Aaron Frey’s press release celebrating the denial of certiorari. He is quoted as saying, “Just as it would be unacceptable for a restaurant to charge for undelivered food or Amazon to charge for an undelivered package, large cable companies should not be permitted to charge for cable that is not provided.” The better simile might be whether a restaurant should have to proportionally refund the cost of a half-eaten meal because it was more food than the customer ultimately wanted or whether a city must refund part of the cost for a parking meter if the driver leaves before the time is up.))

Jay Bohn

January 16, 2023

Post script

While this post is not intended to be about the merits of the cable companies’ claim, I should point out that on October 15, 2021, New Jersey’s intermediate appellate court, the Appellate Division of the Superior Court, ruled that a New Jersey regulation requiring the same kind of proration was preempted by federal law. The NJ Supreme Court has granted review and heard oral argument today.((The cable company involved also obtained relief in federal district court, but the court of appeals ordered that case dismissed for procedural reasons.))

J.B.B.

January 17, 2023

MSN’s source for the story was the Washington Examiner. [↩]

Proponents of Immigration Reform Should be Explicit About What They Want

Yesterday the Star-Ledger published an editorial, “Politics get in the way of our pragmatism and humanity when it comes to immigration”((The editorial was entitled “America’s last chance at immigration reform. Watch who blocks it,” on NJ.com. I don’t understand why pieces are given different names in print and on-line.)) calling for the Senate to pass an immigration reform bill¹ during the lame duck session.((The lame duck session is when politicians who have already lost, or at least will not have to face voters for another 2, 4, or 6 years, suddenly get the “courage” to do what is unpopular (what their constituents do not necessarily want). See my post Lame Duck Hunting Season.)) I’m not saying I’m against immigration reform; I want to know what the Star-Ledger Editorial Board means by it.

According to the editorial, the principal features of the bill are:

$25 billion in funding to secure the border (more agents and complete walls already under construction
funding to accelerate the asylum process (new facilities and more immigration judges)
another year for Title 42
path to citizenship for Dreamers

Judging from the balance of the editorial, it appears that the last bit is the “reform” while the others are what reformers have to swallow to get there. If providing legal status for Dreamers((“Dreamers” has become a term used to describe people who entered the Unites States illegally when they were young, prototypically brought by their parents. They have little if any memory of their birth countries. It is a situation tailor-made to tug at our heartstrings. The Obama administration created the Deferred Action for Childhood Arrivals (DACA) program to “defer” their removal and give them certain benefits in the interim. The DACA program is currently subject to legal challenges. Although no court has upheld it, the Supreme Court held that the way in which the Trump administration sought to rescind it was procedurally improper. Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020). Most recently the Fifth Circuit affirmed a district court judgment vacating DACA and granted a limited nationwide injunction and remanded for consideration of subsequent regulatory developments. Texas v. United States)) is what the Star-Ledger Editorial Board means by “immigration reform,” please say so rather than using code.

But I don’t think this is all the Star-Ledger Editorial Board wants. The editorial’s reference to “[t]he agonizing sight of desperate migrants wading across the Rio Grande into El Paso last weekend – 2,460 per day, over three days,” suggests that the Star-Ledger Editorial Board believes that the United States should as a matter of policy allow unlimited (or at least much less limited) immigration. If that is their editorial position (and all the poetic references to the Statute of Liberty suggests to me that it is), please just say so.

As a matter of policy I would prefer that the United States be more inviting to people who want what we like to call “the American dream.” And I do not doubt that historically and currently much anti-immigrant feeling is fueled by racism. But that does not mean that we should ignore laws that provide otherwise or just wink when they are violated. Why should adults who have entered this country in violation of its laws (or overstayed the welcome provided by a permitted entry) have an advantage over someone who applies to immigrate?

Jay Bohn

December 19, 2022

I would prefer that when discussing particular pending legislation, the media would identify the bill so that readers, viewers, and listeners can look it up. [↩]

Supreme Court’s “Free Ride” for Corruption Shows That Laws Are Poorly Written (or that Prosecutors Extending Them to Conduct Not Covered)

In a recent example of his unlabeled editorials,((Government corruption getting a free ride from U.S. Supreme Court, N.J. attorney general says, published as a “Subscriber Exclusive” on NJ.com on December 10, 2022, and in the Star-Ledger on December 11, 2022.)) Star-Ledger Washington correspondent Jonathan Salant covered a speech by New Jersey attorney general Matthew Platkin complaining that the U.S. Supreme Court has made it harder to bring federal charges against public officials. The editorial (um, article), citing three examples, one each from 2016, 2018, and 2020, says: “Federal courts have not been kind to federal efforts to prosecute state and local officials on corruption charges.”((I seem to remember that as U.S. attorney former Governor Chris Christie’s record on corruption prosecutions was 132 convictions, 0 acquittals.))

The first example was the Supreme Court’s unanimous ruling in McDonnell v. United States, 579 U.S. ___ (2016), which reined in an over-expansive reading of “official act” which the prosecution would have extended to merely setting up a meeting, calling another public official, or hosting an event. Based upon the statutory text, the Court ruled:

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”

Because the jury instructions permitted a guilty verdict based upon the former Virginia governor’s “merely setting up a meeting, calling another public official, or hosting an event” the conviction was reversed, and the district court ultimately dismissed the case on the Government’s motion.

The second example was the dismissal (the article incorrectly indicates that this was an acquittal) of some of the charges against Senator Robert Menendez.

The third example was the Supreme court’s (again unanimous) reversal of the Bridgegate convictions in Kelly v. United States, 590 U.S. ___ (2020), which ruled that the defendants could not have committed the fraud as charged because they did not obtain money or property.

True, the Supreme Court cases did make it harder to convict officials on federal charges, but that is because the laws at issue were not written to cover the conduct alleged. The Government has still been able to prosecute numerous officials successfully. If federal anti-corruption laws should cover additional conduct, they should be re-written to do so explicitly. (After all, a person must have fair notice that conduct is criminal before being prosecuted for it; if the statute could be read either way, to use the baseball adage, “the tie goes to the runner.”)

Platkin is quoted as saying that state attorneys general “really are the last bastion of defense against what I consider to be a pretty pervasive problem.” Maybe that’s as it should be. Why it should be solely (or even primarily) a federal responsibility to prosecute corrupt state or local officials?

The Demand for Trump’s Tax Returns Could Lead to Weaponization of Tax Laws

Donald Trump spurned recent tradition for presidential candidates by not releasing his federal income tax returns. I don’t think that’s a bad thing; there is no legal requirement to do so, and, if Congress were to consider such a law, it should debate who else’s public influence justifies the loss of privacy: the vice president, members of Congress, maybe reporters.

Because the media believe that they are entitled to know everything (for the public good of course), the clear trend of coverage of this issue over the years has been in favor of disclosure.

Well, now Trump’s more recent tax returns are in the hands of the House Ways and Means Committee for the ostensible reason that they would be useful in the crafting of future legislation. That’s not going to happen, but I’m sure that they will be made public in short order, which was the real purpose of the request.

A few other observations about media coverage of this issue.

Articles have speculated why Trump did not release the returns, always from the perspective that his refusal was nefarious, or at least venal. The suggested reasons included that they would show that he was not as wealthy as he claimed or that he paid what the reporters deemed to be too little in taxes. Not once do I recall reading any expectation (which I think is a given) that dozens if not hundreds of people will pore over the filings once they are released hoping to find something that they can assert shows not just legitimate tax avoidance (which will be the subject of critical commentary anyway) but actual criminal tax evasion.

As usual, coverage of the court proceedings has been inaccurate. No court has ordered the release of the tax returns to the committee. That result is provided by statute. The court proceedings were Trump’s attempt to stop the turnover, which all failed. (To be clear, I am not asserting that as a legal matter those decisions were in any way incorrect. Certain Congressional committees have the legal right to obtain anyone’s tax return. That’s the problem.)

Jay Bohn

December 1, 2022