By Sam Brunson
Okay, maybe it wasn’t entirely a bombshell; in our leak–happy environment, it was almost inevitable that we’d eventually see some of Trump’s returns. And this barely counts as a return: it’s just his Form 1040 from 2005 (that is, the first two pages of a return). When I grade voluntary presidential candidate tax disclosures, one year’s Form 1040 realistically gets you a D+; the 1040 says how much you ultimately paid in taxes, but very little more than that. (For example, you can see that Trump had itemized deductions of just over $17 million, but you can’t tell what itemized deductions he took. I mean, is it mortgage interest? state and local taxes? charitable contributions? some combination? Without the full return, we have no way of knowing.)
Unsurprisingly, Trump is not happy with this disclosure. A White House spokesperson put out a statement that says, among other things:
Despite this substantial income figure and tax paid, it is totally illegal to steal and publish tax returns.
Is that right that it is illegal to publish Trump’s tax returns?
Maybe. But it depends.
Broadly speaking, Section 7213(a) of the Code makes it a felony for federal and state employees to disclose taxpayers’ tax returns. (That’s a slightly unnuanced description of the law, but it’s good enough for our purposes here.) Section 7213(a)(3) also makes it unlawful for
any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information.
The language here is slightly ambiguous. It could be read to say that it is a felony to willfully print returns obtained in any manner not explicitly authorized by the Code. That seems a stretch, though; I think a better reading is that section 7213(a)(3) makes it a felony to publish tax returns if the publisher received those tax returns from a federal or state employee, whose disclosure of those returns violated the law.
My reading is buttressed, I believe, by the legislative history. The Senate Report for the Tax Reform Act of 1976 explains that criminal penalties apply
to any person who prints or publishes any return information which he knows was disclosed to him in violation of the law.[fn1]
The Ninth Circuit agrees, and has stated that convicting someone under section 7213(a)(3) requires the government to prove that (a) the disclosure was “unauthorized,” and (b) the publisher of the return “knew that the information was disclosed to him in violation of the law.”[fn2]
Under this standard, Johnston and Maddow probably didn’t violate the law by publishing the returns. My understanding is that they don’t know who leaked the return, so it is hard for them to know that it was leaked in violation of the law. And, in fact, the return itself has evidence that it probably wasn’t leaked by a government employee: the second page has a “Client Copy” stamp on it, and it lacks Trump’s signature. That is, this particular Form 1040 almost certainly wasn’t leaked in violation of section 7213.
Even if I’m wrong about the scope of section 7213(a)(3), though, I still suspect that Johnston and Maddow are unlikely to face criminal sanctions. In Bartnicki v. Vopper,[fn3] the Supreme Court addressed this question:
Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?
In that case, somebody had surreptitiously intercepted a cell phone conversation between a union negotiator and the union president. The unknown person had provided the call to the media, and a radio host played it. Taping the cell phone call violated state and federal wiretapping laws. Disclosing contents of an electronic communication that a person knows or has reason to know was obtained illegally violated the state and federal statutes.
The case is not directly on point with the question of publishing Trump’s tax returns, of course. It dealt with wiretapping, not tax privacy, and provided a civil, rather than a criminal, cause of action. Moreover, the Court said that it deliberately chose to decide the case more narrowly than it could have.
But it’s at least instructive. And, in the Bartnicki case, the Court held that, while privacy concerns were important, they were not as important when balanced against publishing “matters of public importance.”
Although the law does not require the president to disclose his tax returns, seeing them is almost certainly a matter of public importance. If that’s true, then even if I’m wrong about the scope of section 7213(a)(3) (that is, even if section 7213(a)(3) applies to the publication of any return that was illegally obtained, irrespective of who obtained it), it’s still unlikely that the government could successfully impose criminal sanctions on Johnston or Maddow, because their free speech rights in this case probably outweigh Trump’s privacy rights.
[fn1] S. Rep. No. 94-938 at 348.
[fn2] Matter of Seper, 705 F.2d 1499, 1502 (9th Cir. 1983).
[fn3] 532 U.S. 514 (2001).