Criminal Justice

Did publication of Donald Trump's tax return information violate the law?

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Donald Trump. Photo by a katz /

Did the New York Times violate federal law when it published a story about Donald Trump’s 1995 income tax return?

Stories in the Washington Post, Slate and raise the issue, but all of them report that the First Amendment would likely protect the newspaper.

The Times received three pages from what appeared to be Trump’s 1995 tax returns in the mail from an anonymous sender. The pages were from a New York state resident return, and New Jersey and Connecticut nonresident returns. The returns reported a $916 million loss in 1995 that would have allowed Trump to avoid paying federal income taxes for up to 18 years.

After the Times published its story, a Trump lawyer from Kasowitz, Benson, Torres & Friedman sent a letter to the Times claiming publication of the tax return without Trump’s permission was illegal, the Am Law Daily (sub. req.) reports. The letter from name partner Marc Kasowitz threatened “prompt initiation of appropriate legal action.”

Federal law makes it illegal to publish tax return information in a manner not authorized by law, according to the Post, Slate and The articles differ, however, on whether the federal law applies to the Times and to disclosure of the state tax information, and whether state laws also penalize disclosure of tax information.

Steptoe & Johnson tax expert told that the federal law makes it illegal for any officer of the government to release tax returns without consent. Harvard law professor Jonathan Zittrain, a privacy expert, agreed in an interview with the Washington Post that if the Times received the tax information from a private citizen, rather than a federal employee, criminal liability is less clear. also says any lawyer who disclosed the return information “could be in a boat load of professional trouble” for breach of attorney-client privilege.

All the articles cite possible First Amendment protections for the Times. A 2001 Supreme Court case, Bartnicki v. Vopper, concerned a radio station’s broadcast of an illegally intercepted cellphone call about union contract negotiations. The court ruled the privacy concerns were outweighed by the public interest in publishing. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” the court said.

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