The Times runs a legal risk in publishing Trump's tax returns

  • 3 October 2016
  • NormanL
The Times runs a legal risk in publishing Trump's tax returns

The ongoing flap about the New York Times story regarding Donald Trump's taxes has given us a lot of heat, but very little light. Fortunately, the Tax Foundation has an analysis that is must reading. Here's a sample, discussing the legality of the Times running with the story:

The Times may face legal troubles for their article but can mount a First Amendment defense. Trump’s lawyer, contacted for comment by the Times, threatened “prompt initiation of appropriate legal action” if the Times published their article on the documents. The Trump campaign’s response referred to the document both as “alleged” and as “illegally obtained,” and in listing all the taxes Trump pays, did not list income taxes. Unauthorized disclosure of federal tax returns is prohibited by 26 U.S.C. § 7213(a)(3), punishable by a $5,000 fine and 5 years imprisonment, but in this case only state tax returns were disclosed. New York punishes unauthorized disclosure of tax return information with dismissal if the party is a state employee (N.Y. Tax § 314) and a criminal misdemeanor (N.Y. Tax § 1825); I couldn’t find information on imprisonment length for this offense. New York further authorizes civil damages of up to $1,000 or actual damages, plus punitive damages and court costs, for unauthorized disclosure of a state tax return (N.Y. Tax § 3038). Connecticut allows for punishing a state employee that violates tax return disclosure laws to be fined no more than $1,000 and imprisoned for no more than a year (Conn. Gen. Stat. § 12-15(g)). New Jersey punishes unauthorized tax return disclosure as a “crime of the fourth degree,” punishable by up to 18 months in prison and a $10,000 fine (N.J. Stat. § 54:50-8(b); N.J. Admin. Code 18:7-11.14). Criminal actions require the state governments to begin legal proceedings, not Trump or his lawyers. In mid-September, New York Times executive editor Dean Baquet said he would publish Trump’s tax returns even if it risked jail time, and I would expect them to raise a First Amendment defense to their publication. In 1971, the Times and the Washington Post won a First Amendment defense against a government order to cease publication of the Pentagon Papers, a collection of classified documents explaining how America became involved in the Vietnam War. 

We are fairly certain that if someone published excerpts of a Times reporter's state tax returns, said reporter would be hopping mad, and demanding justice.

But this is politics, so anything and everything goes.

If only the Times was willing to go all out in defense of other constitutional rights. Say, the right to keep and bear arms...