The Justice Department is defending President Donald Trump’s personal financial disclosure by arguing that the rules for such forms are so ambiguous that a lawsuit challenging the disclosure must be thrown out.
The unusual argument came in response to a suit filed in March arguing that the financial disclosure Trump filed as a candidate last year was incomplete because it failed to indicate which of hundreds of millions of dollars-worth of outstanding loans Trump is actually personally liable for.
Instead, Trump’s form appears to blend his personal debts with those of businesses he has interests in, effectively obscuring which creditors may have the greatest leverage over him.
All Trump’s debts are covered on a single page of his 104-page disclosure. According to the report, the listed loans exceed $300 million in total. The total amount of the loans is known to be much larger based on other data, but the disclosure form does not require details above $50 million for each loan that exceeds that amount.
In a filing this week in federal court in Washington, Justice Department lawyers argue that Trump had no legal duty to be more specific about which debts are his and which are his companies’.
"Where a filer reports both personal and non-personal liabilities in his OGE Form 278e, nothing in the statute or regulations require the filer to take the additional step of identifying which liabilities he is personally obligated to pay," Justice Department attorney Nikhel Sus and other lawyers wrote. "Defendant owes no duty—let alone a ‘clear and compelling’ duty—to identify which of those liabilities are personal ones.
The government also argues that there is no prohibition on reporting more information than the law or regulations may require.
"EIGA [the Ethics in Government Act] does not prohibit reporting more than what the law mandates; it merely provides that certain liabilities are ‘not required’ to be reported. That makes good sense, as it may not always be clear whether a given liability is reportable. For example, neither EIGA nor its implementing regulations clarify whether a filer must report liabilities of a business in which he holds an interest," Sus wrote. "Given this lack of clarity, it would make little sense to penalize a cautious filer who over-reports liabilities."
The Justice Department marshaled the arguments in response to a lawsuit filed in March by Washington attorney Jeffrey Lovitky, who claimed that the lack of detail deprived the public of important information about the circumstances under which Trump could find himself personally liable to the large banks and financial institutions behind the listed loans.
Office of Government Ethics Director Walter Shaub, who has been critical of the Trump administration’s ethics policies on a variety of fronts, said he wouldn’t fault Trump for providing more information than is required.
"I won’t discuss the individual financial disclosure report, but I agree with the principle underlying DOJ’s objection to a claim that disclosing more than required is a violation of law," Shaub told POLITICO. "Financial disclosure’s hard enough as it is."
Lovitky declined to comment on the court filing. However, his suit argues that overdisclosure can sometimes be a problem, creating a needle-in-a-haystack situation that makes it difficult or impossible to discover where an official’s true interests lie.
It’s possible the key issue raised in the suit could be resolved soon since White House aides indicated last month that Trump planned to file a financial disclosure covering the calendar year 2016. Trump’s lawyer initially asked if he could file the form without signing it, but Shaub’s office rejected that approach. A new disclosure form isn’t technically due until May 2018, but recent presidents have filed one voluntarily in their first year in office.
The government’s court filing this week also makes a series of technical arguments against the suit, noting that Congress didn’t specifically authorize members of the public to sue over allegedly inaccurate financial disclosures. Justice Department lawyers also argue that the impact on Lovitky isn’t sufficient to give him standing to pursue the case.
The suit is pending before U.S. District Court Judge Colleen Kollar-Kotelly, an appointee of President George W. Bush.