Trump’s trouble is that the dike is sprouting more leaks than he has fingers with which to plug the expanding trickles. Two federal judges, one in Maryland and one in the District of Columbia, have approved lawsuits based on the U.S. Constitution’s emoluments clause demanding information about Trump’s revenues from foreign-government entities. Those lawsuits—one filed by congressional Democrats, the other by attorneys general for the state of Maryland and the District of Columbia—now proceed to two different appellate courts, the Fourth Circuit and the D.C. Circuit. At this rate, an emoluments case could reach the Supreme Court before the 2020 election.
The dispute over the president’s tax returns has not yet triggered a judicial process. Secretary Steve Mnuchin must first decide whether he will risk a contempt-of-Congress citation, and shoulder personal legal risk. If the tax-return demand ends up in court, we’ll witness the unusual spectacle of a Republican administration inviting judges to reverse decades of conservative legal theory and defy the clear letter of the law in favor of nebulous concepts of privacy. For half a century, conservative lawyers have mocked the 1965 birth-control case in which Justice William O. Douglas created a new constitutional right to privacy out of the “penumbras” formed by “emanations” of the Bill of Rights. Perhaps Douglas, like Julian Assange before him, will now transition from conservative villain to Trumpist hero.