EXPERTS: no clear criminal case over Trump tax disclosure

NYT says it received his papers anonymously

NEW YORK — Donald Trump tax documents were published without his permission in The New York Times, but that doesn’t necessarily make for a clear-cut criminal case against the newspaper or its source.

For one thing, it’s not clear who did the divulging – the Times says it received the documents anonymously in the mail. And legal experts say the newspaper itself should be on solid First Amendment grounds if it used newsworthy, accurate information and did nothing illegal to get it.

“When you’re in an election and you’re looking at candidates’ tax returns, I don’t think it’s dangerous” legally for the Times, said media lawyer James Goodale, the Times’ general counsel when the federal government sought unsuccessfully in 1971 to stop the newspaper from publishing the “Pentagon Papers,” a classified military study showing that the U.S. had secretly expanded the Vietnam War.

Trump’s lawyers have threatened “prompt initiation of appropriate legal action” of their own over Saturday’s story, which said the businessman had declared $916 million in losses in 1995. The deduction was so big he could have forgone paying federal income taxes for 18 years.

The Times said Monday it hadn’t heard further from Trump’s lawyers.

“Our job is to report on matters of public concern, and that’s what we did here,” the newspaper said in a statement. “Nothing could be more central to the First Amendment than our right to publish, and the public’s right to know, important information about presidential candidates.”

Trump has built his campaign around his business acumen and financial success, while bucking a 40-year-long custom of presidential candidates releasing their income tax returns.

His campaign told the Times he had paid hundreds of millions of dollars in various forms of taxes, had a duty to his business, family and employees “to pay no more tax than legally required” and had gained a unique understanding of the tax code.

Trump himself has raised questions about publicly disclosing information rival Hillary Clinton has kept private. He urged Russia in July to find emails that Clinton deleted from her personal server, saying they were private, when she was secretary of state. Trump later said he was being sarcastic.

The Times published the first page of Trump’s 1995 Connecticut, New Jersey and New York state tax returns and said his former accountant had authenticated them. All three states have criminal laws against disclosing such tax information without permission.

Connecticut Department of Revenue Services commissioner Kevin Sullivan said Monday his agency conducted internal checks and was confident no staffers had improperly looked up Trump’s returns.

As for the Times, “there’s not, to my mind a pattern, that would suggest anything that would be subject to prosecution,” Sullivan said in an interview.

New York’s Tax Department answered questions about the Trump records only with a general statement about protecting taxpayer information. The state attorney general’s office, which has clashed with Trump over his foundation and the former Trump University real estate investing school, said it would need a referral from another agency to launch a criminal probe.

Representatives for New Jersey’s attorney general didn’t immediately respond to questions about the tax disclosure. A spokesman for Gov. Chris Christie, who heads Trump’s transition team, said it would be inappropriate for the governor’s office to comment because such matters are the attorney general’s responsibility.

Courts have said news media can disseminate information others have illegally gathered, with some caveats: The news organization must not have participated in any illegal action, and the information has to be newsworthy and true.

For example, a 2001 Supreme Court ruling found in favor of a Pennsylvania radio station that broadcast an illegally recorded phone conversation among teachers’ union officials discussing strike plans. An unidentified person had intercepted the call.

Some legal and media commentators have noted that Times Executive Editor Dean Baquet told a panel audience last month he’d push the Times’ lawyers to publish Trump’s tax records if the paper got them.

But it would be a legal stretch to portray those remarks as inviting law-breaking, Goodale said.

About 2/3 of registered voters say it’s somewhat or very important for presidential candidates to release their tax returns, with 46 percent saying it’s very important, according to an Associated Press-GfK poll last month.

But regardless of public opinion, “journalists, in their role in holding the powerful accountable … are going to be looking for information that people might or might not ask for, but the journalist believes helps them be better informed,” said Aly Colon, a media ethics professor at Washington and Lee University.

Yet the Trump tax disclosure also comes at a time when waves of hacks and leaks are inuring people to the idea of invading privacy, notes Jonathan Zittrain, a Harvard Law School professor whose specialties include privacy.

It may be one thing when journalists are revealing information about as public a figure as Trump, but if everyone’s information and communications come to be seen as fair game, “at some point, this is not, then, a phenomenon that is about public accountability,” he said. “It’s a phenomenon that could be chilling.”