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In 1983, long before reporters began ravenously hunting for Donald Trump’s tax returns, the 9th U.S. Circuit Court of Appeals examined a bid to force a reporter, Jerry Seper, to testify about his sources for a story about a tax audit of United Liquor Company. Seper contended that identifying his source would incriminate him under a federal statute (26 U.S.C. § 7213) that makes it unlawful for any person to whom tax information is disclosed to willfully publish such information. Seper asserted Fifth Amendment rights to escape testifying.
“Certainly, Seper’s testimony could provide a basis to charge him,” stated the 9th Circuit opinion. “Conviction, however, would be far from certain. To convict Seper, the government would have to prove that the disclosure to Seper was ‘unauthorized,’ and that Seper ‘willfully’ published the information … In addition, to prove willfulness, the government probably must show that Seper knew that the information was disclosed to him in violation of the law.”
This meditation might have been the closest that any court has ever come to articulating whether journalists could go to jail for publishing someone’s tax returns.
On Tuesday night, MSNBC host Rachel Maddow shared two pages of Trump’s 2005 tax returns that she said were anonymously leaked to tax reporter David Cay Johnston. The information itself — that the president had paid $38 million on reported income of $150 million — turned out to be a disappointment to many, but Maddow’s real point was that Trump’s tax situation was still mysterious and that there were evidently some out there who were willing to provide answers. Just before Maddow’s show began, the White House preemptively responded, “You know you are desperate for ratings when you are willing to violate the law to push a story about two pages of tax returns from over a decade ago.”
To the allegation that the disclosure was “illegal,” Maddow waved the First Amendment flag.
Maddow’s confidence of doing nothing wrong — echoed by other legal experts like Harvard law professor Laurence Tribe — emanates from Bartnicki v. Vopper, a 2001 Supreme Court opinion focused on the broadcast of intercepted cellphone conversations by certain union officials. The high court gave the media defendants a pass from violating a federal wiretap law as “their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else.”
For this reason, Maddow and Johnston are probably on safe ground should Attorney General Jeff Sessions attempt to prosecute. However, ending the discussion there ignores some wrinkles that may especially come into play for any subsequent disclosures of Trump’s tax information. It also maybe looks past some of the lessons from Hulk Hogan’s lawsuit against Gawker, where the news website wasn’t able to use the Bartnicki principle to shield itself from publishing a sex tape that was delivered in the mail anonymously.
Around the same time that Bartnicki was being decided, there was another dispute involving a Congressman named James McDermott who had disclosed to two reporters a tape recording of an illegally intercepted conversation between other members of Congress. The subsequent case, Boehner v. McDermott, spent about a decade in court, and in 2006, a panel at the D.C. Circuit held that the First Amendment doesn’t protect those who disclose information knowing that it was obtained through unlawful means.
“The difference between this case and Bartnicki is plain to see,” wrote an appellate judge. “It is the difference between someone who discovers a bag containing a diamond ring on the sidewalk and someone who accepts the same bag from a thief, knowing the ring inside to have been stolen. The former has committed no offense; the latter is guilty of receiving stolen property.”
Fortunately, for those in the media who agreed with a dissenting judge that the ruling was “fraught with danger,” the decision was then vacated by an en banc panel the following year in a ruling on much more narrow grounds. That said, the Supreme Court hasn’t yet fully weighed in on the question of whether knowing of the illegality of disclosure is enough to eradicate First Amendment protection. It’s an opening some plaintiffs are attempting to exploit. See for example the way that NFL star Jason Pierre-Paul last year hurdled past ESPN’s motion to dismiss in a since-settled lawsuit over disclosing confidential medical records.
Maddow addressed on her show the fact that she and Johnston weren’t sure who had sent over Trump’s 2005 tax return. (Back in October, The New York Times also revealed tax info of Trump’s from the mid-’90s and was careful to note that the documents showed up unsolicited in the mail.) As such, even if there’s such an opening, prosecutors would probably have a very difficult time proving illicit knowledge in any regard. Johnston even speculated that Trump himself might have leaked the returns, which adds the possibility that the disclosure wasn’t even unauthorized.
(Another theory out there — arising in part from the appearance of a “client copy” stamp on the 1040 — is that the returns came from someone who was engaged in a deal or litigation with Trump. Those who have seen his taxes include reporter Tim O’Brien, who was sued by Trump for libel for supposedly underestimating his net worth. There are probably others with access to Trump’s returns, and if one of these folks did share the 2005 info, he or she could possibly face trouble depending on specific confidentiality restrictions.)
The latest revelation has hardly dampened enthusiasm for scoring more Trump tax returns, especially those of more recent vintage. Some even are going a bit further than prayers, winks, and the passing along of an email address for would-be leakers. For example, Hillary Clinton ally David Brock has reprised his solicitation of sensational Apprentice footage by tweeting, “More questions than answers tonight. I’m offering a $5m reward to anyone with Trump’s complete, legally obtained tax returns.”
Something like this could move the goal post even closer to provoking a landmark dispute. (Assuming Howard Stern doesn’t get there first.) No doubt there will be distinguished attorneys who would love to represent media interests against Trump over tax disclosures, some even willing to work pro bono to demonstrate that the First Amendment and Bartnicki provides absolute immunity. Just know that such a case if it should come about would implicate the very thorny hot zone around speech and privacy and also be an important one that settles something the 9th Circuit mused about in passing a quarter-century ago.
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