In a change of pace, the public was the beneficiary of some good journalism from the New York Times. Yes, they wrote about some copies they received of Donald Trump’s 1995 New York, New Jersey, and Connecticut tax returns. As a result, some outlets have breathlessly argued the Times can be prosecuted for publishing what they conjecture were illegally obtained returns. (If it was Trump’s then-wife Marla Maples who disclosed the information, that obviously would not be an unauthorized disclosure.) Tucker Carlson’s Daily Caller is leading the prosecution chorus. A more thoughtful (but in many ways errant) take was provided by LawNewz:
“If released from the files of the IRS or a state tax agency by a government employee, this would be a felony,” Robert Kovacev, a tax attorney with Steptoe & Johnson explained to LawNewz.com. According to 26 U.S. Code 6103, it is illegal for any officer of the government to release a person’s tax information without authorization. There is a provision in the law that allows the government to disclose the taxes with the consent or authorization of the taxpayer. Obviously, in this case, we know Trump didn’t give authorization. However, we don’t know for sure where the tax returns came from.
But this conflates the leaker with the leakee (and misreads Section 6103). The Times didn’t illegally disclose the information—someone disclosed it to the Times. (Think of how many stories are based on the leak of classified info, which is also a crime.) No one would imagine prosecuting a paper for that. They won’t here, either. But is it theoretically possible? I still say no.
Such a prosecution would rely on 26 U.S.C. Section 7123, which states in pertinent part:
It shall be 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. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.
[Emphasis added]
That seems to apply at first blush, right? But the question is: Was what the Times published covered by 6103(b)? I think not. Section 6103(b) related to information provided to the IRS, not to state tax agencies. The Times did not publish federal tax information (though obviously the state returns do contain the same information.)
But even if it did, this law (if used for a far-fetched attempt at prosecution) would not survive a First Amendment challenge. We all know about the Pentagon Papers case, but a case more on point is the 2001’s Bartnicki v. Vopper:
These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. That question is both novel and narrow. Despite the fact that federal law has prohibited such disclosures since 1934,1 this is the first time that we have confronted such an issue. [. . .] The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The persons who made the disclosures did not participate in the interception, but they did know–or at least had reason to know–that the interception was unlawful. Accordingly, these cases present a conflict between interests of the highest order–on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech. The Framers of the First Amendment surely did not foresee the advances in science that produced the conversation, the interception, or the conflict that gave rise to this action. It is therefore not surprising that Circuit judges, as well as the Members of this Court, have come to differing conclusions about the First Amendment’s application to this issue. Nevertheless, having considered the interests at stake, we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment. [...]
We think it clear that parallel reasoning requires the conclusion that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.22 The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley West High School were unquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern. That debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis’ classic opinion in Whitney v. California, 274 U.S., at 372, but it is no less worthy of constitutional protection.
This case did not even involve media—it was a union dispute. Here, where it involves a presidential candidate and the New York Times? There is zero chance of prosecution.
Let’s put it this way: if there is going to be a prosecution here, then the queue will be long, starting with all media that have published stories based on the various hacks of Democrats. That includes the most recent audio of Clinton talking about young Sanders supporters.
It will never happen—and if it did, the First Amendment would block it.