The New York Times published details on two decades worth of Donald Trump’s tax returns, sparking outcry from many of the president’s supporters that the Times and its reporters should be investigated for breaking the law. It’s important to understand that while the financial records may have been unlawfully disclosed to the Times, legal precedent shows that it was legal for the Times to publish reporting on confidential documents.
The reaction from Turning Point USA’s Charlie Kirk was representative of the outrage:
Who leaked Trump’s tax returns to The New York Times?
26 U.S. Code § 7213 makes it illegal to disclose unauthorized information, including tax returns
If true—there should be felony charges leveled.
RT if DOJ should immediately investigate the Times and their sources!
— Charlie Kirk (@charliekirk11) September 28, 2020
“Who leaked Trump’s tax returns to The New York Times? 26 U.S. Code § 7213 makes it illegal to disclose unauthorized information, including tax returns,” Kirk said. “If true—there should be felony charges leveled. RT if DOJ should immediately investigate the Times and their sources!”
26 USC § 7213 has been floating around online quite a bit ever since; so has the assumption that an officer or employee of the Internal Revenue Service (IRS) illegally leaked the documents. This is a reasonable assumption but an assumption nonetheless. The Times‘ own words about how it obtained the tax returns provide few clues about what went on here:
All of the information The Times obtained was provided by sources with legal access to it. While most of the tax data has not previously been made public, The Times was able to verify portions of it by comparing it with publicly available information and confidential records previously obtained by The Times.
Andy Grewal, a tax law scholar who has written extensively on topics related to Trump’s tax returns and teaches at the University of Iowa College of Law, noted that the tax returns could have come from a few sources that aren’t the IRS.
“From the article, I cannot tell the source(s) of the documents. The documents could be from an IRS employee, a state revenue agent, a Trump Org employee, a bank employee, or someone else,” Grewal told Law&Crime.
Based on the law professor’s answer, it seems the list of individuals or entities who would have “legal access” to the president’s tax returns is not a long one—but it isn’t only the IRS either. And Kirk is correct that it’s possible that the source(s) violated disclosure law, but there’s still too much we don’t know to say for sure.
“Depending on the circumstances, the leak could violate the law, an ethical rule, a disclosure agreement, or some other obligation. But one is left to speculate,” Grewal said.
Kirk’s tweet was retweeted more than 25,000 times, so we can assume that a lot of people really do want the Times and its sources investigated. Such an investigation would implicate clear First Amendment issues. For the purposes of this discussion, let’s assume this really was an IRS employee who leaked the documents.
What would happen to that person if they were found out and what would happen to the person(s) and/or entity who actually publicized the information?
Remember when then-Stormy Daniels attorney-turned-convicted felon Michael Avenatti obtained documents (Suspicious Activity Reports) pertaining to Michael Cohen from an IRS analyst? That analyst, John C. Fry, was investigated and ultimately pleaded guilty to committing a federal crime. You know who wasn’t punished for this? Avenatti—the third party who posted the documents.
Remember when Natalie Mayflower Sours Edwards, a senior advisor at FinCEN (Financial Crimes Enforcement Network), unlawfully disclosed Suspicious Activity Reports to a BuzzFeed reporter? SARs that related to Russia, Paul Manafort, Rick Gates and Maria Butina? The feds said that Edwards saved a whopping 24,000 SARs on a department-issued thumb drive. The majority of these files were saved to a folder named “Debacle – Operation-CF,” which contained subfolders named “asshat,” “debacle,” and “emails.” Edwards pleaded guilty to committing a federal crime. You know who wasn’t punished? The reporter.
Supreme Court precedent and New York’s shield law for journalists also mean that Charlie Kirk et al. are S.O.L. on the prospect of exacting revenge against the Times.
Bartnicki v. Vopper is a Supreme Court case that was decided in 2001. A 6-3 SCOTUS held that the First Amendment protected the disclosure of illegally intercepted communications by third parties who didn’t participate in said interception (contrast this with what the U.S. government has accused WikiLeaks publisher Julian Assange of doing):
In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception. “In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance,” wrote Justice Stevens. “[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Noting that the negotiations were a matter of public interest, Justice Stevens wrote that the “debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis’ classic opinion in Whitney v. California, but it is no less worthy of constitutional protection.”
Then there’s New York’s Civil Rights Law § 79-h, which the Reporters Committee for Freedom of the Press noted “provides an absolute privilege from forced disclosure of materials obtained or received in confidence by a professional journalist or newscaster, including the identity of a source. Beach, 62 N.Y.2d 241 (applying absolute privilege against disclosure of a confidential source even though the disclosure of the materials to the reporter may itself have been a crime).”
“The privilege applies in both criminal and civil contexts and to information passively received by a reporter,” RCFP added.
New York’s Civil Rights Law § 79-h outlines “special provisions relating to persons employed by, or connected with, news media.”
Those provisions as applied to journalists’ and their confidential sources are defined in absolute terms [emphases ours]:
(b) Exemption of professional journalists and newscasters from contempt: Absolute protection for confidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news or information to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose any news obtained or received in confidence or the identity of the source of any such news coming into such person’s possession in the course of gathering or obtaining news for publication or to be published in a newspaper, magazine, or for broadcast by a radio or television transmission station or network or for public dissemination by any other professional medium or agency which has as one of its main functions the dissemination of news to the public, by which such person is professionally employed or otherwise associated in a news gathering capacity notwithstanding that the material or identity of a source of such material or related material gathered by a person described above performing a function described above is or is not highly relevant to a particular inquiry of government and notwithstanding that the information was not solicited by the journalist or newscaster prior to disclosure to such person.
(c) Exemption of professional journalists and newscasters from contempt: Qualified protection for nonconfidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature, or other body having contempt powers for refusing or failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news as provided in subdivision (b) of this section, or the source of any such news, where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source. A court shall order disclosure only of such portion, or portions, of the news sought as to which the above-described showing has been made and shall support such order with clear and specific findings made after a hearing. The provisions of this subdivision shall not affect the availability, under appropriate circumstances, of sanctions under section thirty-one hundred twenty-six of the civil practice law and rules.
(d) Any information obtained in violation of the provisions of this section shall be inadmissible in any action or proceeding or hearing before any agency.
(e) No fine or imprisonment may be imposed against a person for any refusal to disclose information privileged by the provisions of this section.
First Amendment expert and attorney Floyd Abrams told Law&Crime that it’s clear The New York Times was free to publish this news.
“First Amendment law could hardly be clearer than that the press is protected in publishing newsworthy information, let alone information about a President in the midst of his campaign for re-election, regardless of whether its source was authorized or permitted to provide it,” Abrams said. “In any event, no law barred the Times from publishing its article and if there had been one it would in all likelihood be unconstitutional.” (Abrams is the father of Law&Crime founder Dan Abrams.)
[Image via Spencer Platt/Getty Images]
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