The New York Times risked legal trouble to publish Donald Trump’s tax return
By Callum Borchers October 2
How Trump could have avoided paying income taxes for 18 years
A report in the New York Times says a $916 million loss in the ’90s might have allowed Donald Trump to legally avoid paying any income taxes for almost two decades. (Sarah Parnass/The Washington Post)
Dean Baquet wasn’t bluffing.
The New York Times executive editor said during a visit to Harvard in September that he would risk jail to publish Donald Trump’s tax returns. He made good on his word Saturday night when the Times published Trump tax documents from 1995, which show the Republican presidential nominee claimed losses of $916 million that year — enough to avoid paying federal income taxes for as many as 18 years.
Federal law makes it illegal to publish an unauthorized tax return or “return information”:
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.
The term “return information” covers not only return documents themselves but also the “amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments or tax payments.”
Baquet said during a panel discussion at Harvard that if the Times’ lawyers advised him not to publish Trump tax returns, he would argue that such information is vital to the public interest because the real estate mogul’s “whole campaign is built on his success as a businessman and his wealth.”
Two weeks later, Times reporter Susanne Craig found tax documents in her mailbox. “The documents were the first page of a New York state resident income tax return, the first page of a New Jersey nonresident tax return and the first page of a Connecticut nonresident tax return,” the Times reported.
The Washington Post’s Justin Wm. Moyer and Lisa Rein recently wrote about the strengths and weaknesses of the kind of defense suggested by Baquet:
First Amendment experts note that while the media could be prosecuted for publishing Trump’s tax returns, a news organization could also assert a First Amendment defense. In the case of the Pentagon Papers, for example, The Post argued that publication served an important public interest.
But those arguments would not be sure winners, experts said. And members of the media would need to consider risks to their sources in any investigation of who shared Trump’s tax information.
“The courts could say, if the public thinks the tax returns are so important, let it demand that the candidate authorize the IRS to release them on pain of losing votes,” said Jonathan Zittrain, a privacy expert and professor at Harvard Law School.
Zittrain told me that “if the New York Times received the return information not from the government after it was filed but from a private citizen, such as
one working for Trump, and from Trump’s own records, criminal liability may be less clear. Which could mean that ascertaining where the material didn’t come from is as important as where it did.”
The Times appears not to know who its source is; the tax documents were mailed anonymously. Jack Mitnick, listed as the preparer of Trump’s New Jersey return, verified that document’s authenticity.
Through an attorney, the famously litigious Trump already has threatened “prompt initiation of appropriate legal action” against the Times.
Washington Post associate editor Bob Woodward, who joined Baquet on the Harvard panel and also said he would risk jail to publish Trump’s tax returns, joked during the talk that in the event of a criminal conviction, perhaps everyone in the newsroom could serve one day of the sentence.