The New York Times Likely Broke Law by Publishing Trump’s Taxes

Locutus

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Free Speech is No Excuse

The New York Times just published Donald Trump’s tax returns without his “affirmative authorization” as required by law. (See IRS Publication 4639). This violates the plain language of the law, and is considered criminal if “willful.” In tax laws in general, and First Amendment cases as well, courts compel a definition of willful that requires the individual know the law and know the law prohibits them from doing what they did. Here is where The New York Times runs into true trouble.

Prior to receiving or publishing these documents, Executive Editor Dean Baquet acknowledged in a public forum with Bob Woodward and Laura Poitras that “lawyers would say this is crossing a line” and “you know what your lawyers would tell you: if you publish them, you go to jail.” In criminal willfulness prosecutions, this is as close as you get to a “smoking gun” of willful intent to break the law: public admission the person knows they would be breaking the law, but advocating it anyway. Worse yet, because Baquet is a “key employee” with authority to bind the company, this conduct could be considered a crime of The New York Times as a company.

The only defense proffered so far by supporters of The New York Times is the First Amendment. A key Supreme Court constraint on the First Amendment defense is that the newspaper obtain information “lawfully.” A seminal case in this respect is the famous footnote 8 from the Florida Star case in the Supreme Court where the court left open the question whether “in cases where information has been acquired unlawfully by a newspaper or by a source” the government may legally “punish not only the unlawful acquisition, but the ensuing publication as well.” The Florida Star v. B.J.F., 491 U.S. 423, 535, n.8 (1989). Notably, the Supreme Court left open whether The New York Times could have been prosecuted from publishing the Pentagon Papers, but at least there, the Times did not knowingly violate a specific criminal statute and promise to do so in advance of receiving the documents. The D.C. Circuit, in the McDermott case, implied the law did not allow a newspaper to publish material it knew, and admitted it knew, was obtained unlawfully, when a specific law prohibited its publishing. Years ago, Senator McGovern followed the same logic in refusing to use documents from the raid on FBI offices in Media, Pennsylvania, that disclosed widespread FBI surveillance actions.

A simple surmise: Soliciting a crime (such as the unauthorized disclosure of tax returns) is not court-protected First Amendment speech. The courts have rejected First Amendment challenges to this specific privacy-protection statute so far, starting in the Richey case in the Ninth Circuit. New York Times Executive Editor Baquet’s public commentary (soliciting disclosure of Trump tax returns by acknowledging he would publish and “go to jail” for it) creates problems for The New York Times‘ First Amendment defense: the First Amendment is not a free pass to criminally invade the privacy of another by the promised act of publishing unlawfully obtained information, knowing it is a crime to do so. The New York Times itself recognized this when it attacked Trump for his joke about Russians finding Hillary’s deleted emails, suggesting, if serious, such conduct would be criminal. Did the New York Times forget the same rules apply to the New York Times?


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The New York Times Likely Broke Law by Publishing Trump’s Taxes. Free Speech is No Excuse. | Law News


What would be really devious is if it were the Trump camp that secretly sent the 1995 tax return to the NYT. First, it defused, imo, the accusation by Clinton's camp that Trump is a tax-dodger when in actual fact he used his write-down to defer on taxes for decades. And, secondly, that the NYT took the bait and printed Trump's tax returns. He can now sue them and perhaps cripple a newpaper that has been in bed with his political rival since the very beginning.
 

Jinentonix

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Good, I hope the NYT goes down in flames. They used to be a great news source at one time, but now they've turned into nothing more than a leftist propaganda rag. Nor is this the first time the NYT has illegally invaded someone's privacy.
 

Tecumsehsbones

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Good, I hope the NYT goes down in flames. They used to be a great news source at one time, but now they've turned into nothing more than a leftist propaganda rag. Nor is this the first time the NYT has illegally invaded someone's privacy.
Sorry to disappoint you, Skippy, but it ain't gonna happen.
 

bobnoorduyn

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The Exited States is a weird country; whose business are personal tax returns to anyone other than the flier, the filer's accountant and the IRS? What's next, being able to snoop in a candidate's sock or lingerie drawer? (Not that they each have one, or maybe...)
 

gopher

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My question is, who disclosed the tax returns to the NYT? It seems to me that this party is the one who faces the real liability (if any) because they were the ones who made the disclosure. If, indeed, this was done by Trump or anyone who has a business or any form of fiduciary relationship to him, then the NYT will not likely face liability.
 

pgs

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Come now you know it is only against the law if republicans do it , unless a democrat p-sses off a more powerful democrat then it might be against the law .

The Exited States is a weird country; whose business are personal tax returns to anyone other than the flier, the filer's accountant and the IRS? What's next, being able to snoop in a candidate's sock or lingerie drawer? (Not that they each have one, or maybe...)
Remember Gerry Hart , I think that was his name , they sure sniffed his laundry .

My question is, who disclosed the tax returns to the NYT? It seems to me that this party is the one who faces the real liability (if any) because they were the ones who made the disclosure. If, indeed, this was done by Trump or anyone who has a business or any form of fiduciary relationship to him, then the NYT will not likely face liability.
Ask Lois Lerner .
 

Danbones

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Sep 23, 2015
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so some of the laws regarding income tax do exist
hmmm...
go figure

of course they won't prosecute the NY Times because it might come out that they know where
boot Hillary has some bodies buried...
 

Walter

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Good, I hope the NYT goes down in flames. They used to be a great news source at one time, but now they've turned into nothing more than a leftist propaganda rag. Nor is this the first time the NYT has illegally invaded someone's privacy.
They've been a leftist rag since the 1930's at least, probably long before that. Research the name Walter Durante, a former NYT columnist and devout communist.