A key moment in determining whether Donald Trump is a serious presidential candidate will be the day he is required to file a disclosure form outlining his personal finances.
Trump has repeatedly put his net worth in the multi-billion dollar range, despite independent estimates that are far lower. Presidential candidates must turn in a disclosure form detailing their investment assets, sources of income, and liabilities. If Trump has made false statements about his net worth, making such information public could be deeply embarrassing. But when is the deadline for filing the form?
Like so much about election law, the answer is complicated. But the bottom line is that Trump could likely hold out on filing a disclosure for a very long time. Here's how it works.
Trump would have to reveal his personal finances within 30 days of filing as an official presidential candidate with the Federal Election Commission. However, Trump could request up to two 45-day extensions beyond that deadline. If the FEC concluded he had "good cause" and granted the extensions, Trump could wait up to 120 days after filing as an official candidate before submitting his personal financial disclosure.
But there's another, potentially more important factor. If he's careful, Trump could continue flirting with a candidacy for quite some time while holding off on filing as an official candidate with the FEC.
The crucial distinction is whether Trump maintains he is merely testing the waters for a potential run or if he starts talking about himself explicitly as a candidate, according to Paul Ryan, FEC program director at the Campaign Legal Center. Federal rules (.pdf) say individuals should register as official candidates when they: explicitly refer to themselves as candidates; buy advertising to publicize their candidacy; amass money for a war chest that could be used in a campaign; or seek ballot access. Once Trump does any of these things and spends $5,000 on the effort (which presumably he already has), he must register as a candidate.
But if Trump does none of these things and continues to say he is merely looking at a potential candidacy, he would not have to register as an official candidate. The endpoint of this game would likely be the first-in-the-nation primary in New Hampshire, expected to be held early in 2012. If Trump is still publicly talking about a candidacy at that point, and he seeks ballot access, he would have to register as an official candidate.
Another key question is whether Trump could participate in GOP primary debates while maintaining that he is not an official candidate.
Ryan says that if he were Trump's lawyer, he would advise: "If you participate in a debate, make sure it's publicly acknowledged by the organizers that the debate is open to people who are not yet candidates." Trump would also have to refrain from referring to himself as a candidate during the debate.
The first primary debate is scheduled for May 5 in South Carolina. Its sponsors, Fox News and the South Carolina GOP, are requiring participants to have either formed an exploratory committee or filed as an official candidate. Trump has done neither. He has said he will make some kind of announcement on May 22 on the season finale of "Celebrity Apprentice."
One other issue: What would happen if Trump filed as an official candidate, got the personal financial disclosure deadline extended by 90 days, and then dropped out of the race right before the 90 days was up? Would he still have to file the disclosure? It's not clear. But it is worth noting that the FEC is widely seen as an ineffective regulator whose rarely brought enforcement actions typically take years before having any effect. And Trump has a long history of litigiousness.
According to FEC rules, the late fee for missing the disclosure deadline is a mere $200. The agency also reserves the right to refer candidates to the Justice Department for potential civil action if they don't file the disclosure form at all.
It appears a maximalist timeline for Trump would look like this: Refrain from calling himself a candidate but continue flirting with the idea of a candidacy and getting lots of free press; stay away from most or all primary debates; register as an official candidate around the turn of the year in order to seek ballot access in New Hampshire; request two 45-day extensions for filing his personal financial disclosure; and, finally, drop out before actually filing.
In other words, we could -- in theory -- be dealing with a Trump candidacy well into next year without ever getting a peek at his finances.