Go ahead, Trumpworld: Make journalism’s year.
At a Harvard University forum last month, New York Times Executive Editor Dean Baquet secured a round of publicity with his comment that he’d risk jail time if that was the price for publishing Trump’s tax returns. The candidate has refused to comply with a four-decade tradition of releasing such records, saying that he’s under audit. Baquet made his remarks about two weeks before Craig retrieved her mail and found an envelope with the precious tax records. Asked whether his vow to do hard time for this story could have inspired a leaker, Baquet told the Erik Wemple Blog, “I doubt it. I mean, who knows?” His “guess” is that someone had seen Craig’s Aug. 20 piece on the debt that Trump had racked up in his business career. “She had done a piece that was really strong and didn’t get quite enough attention … it showed an understanding of his finances.” Good hunch — leakers commonly flock to reporters who show an understanding of the subject matter they wish to impart.
As explained here, there is a federal statute governing the unauthorized publication of tax returns:
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
Yet the New York Times received state tax records, not federal ones.
Yes: Whoever leaked the tax records could be in trouble, considering that this individual almost certainly acted against the wishes of Trump. Media law, however, draws a sharp line in cases like these. If a news organization passively receives information that was obtained illegally, it can go ahead an publish a story, so long as it’s in the public interest. Here, there’s little question as to whether the New York Times is meeting that standard. Trump is Trump is Trump. “I think there was no hesitation,” Baquet told the Erik Wemple Blog, noting that the primary concern of the paper’s editors was to authenticate the documents — a task greatly facilitated by the comments of a former Trump accountant.
The focus on confirming the story is critical to the legal considerations, too. As a general rule, U.S. news organizations have pretty broad protections when they seek to publish true information that’s in the public interest. The 2001 Supreme Court case Bartnicki v. Vopper helped establish this principle. As this blog summarized in a previous posting:
In 1992 and 1993, a union that represented teachers at the Wyoming Valley West High School in Pennsylvania was involved in some adversarial collective-bargaining discussions with the local school board. In the heat of the conflict, a couple of the union negotiators held a phone conversation. One of them said this: “If they’re not gonna move for three percent, we’re gonna have to go to their, their homes . . . . To blow off their front porches, we’ll have to do some work on some of those guys. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).”[…]Talk radio host Frederick Vopper got his mitts on the recording and played it. As the case record notes, the front-porch-destroying stuff spread to other news outlets. Gloria Bartnicki, a union official on the call, sued for all kinds of damages, alleging that Vopper “‘knew or had reason to know’ that the recording of the private telephone conversation had been obtained by means of an illegal interception.” Perhaps, but Vopper was a passive recipient, having gotten the tape from a local taxpayer advocate; media organizations that used the recording, according to the court, “never learned the identity of the person or persons who made the interception. [A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.
Justice John Paul Stevens wrote in the court’s opinion, “[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” It matters, too, that the New York Times, as far as we know, did nothing to abet or encourage lawbreaking in this case. In an interview with ABC News, Craig herself captured the sentiment, saying that it’s not a “a crime to check your mailbox.”
Former Justice Department official Walter Dellinger says, “This is so easy.” In publishing tax records of Donald Trump, says Dellinger, “You’re talking about the most important kind of information about the most important public decision a country makes. … It’s not like releasing the tax returns of an assistant principal, just to embarrass her.” Another point: Any expectation of privacy for Trump withers under the consideration of the tradition that presidential candidates have made a tradition of releasing just this information as part of their screening for office.
When Baquet & Co. ran the story past New York Times lawyer David McCraw, “He didn’t have any issues,” says Baquet.
It’s Trump who has the issues — with an independent media, which he has sought to silence through the denial of credentials; with U.S. libel laws, which he has vowed to somehow “open up”; with scrutiny itself, which he denounced back in May after news organizations — most notably the Washington Post — poked holes in his charity record. “You make me look very bad,” he said. Weeks ago, he made some noises about taking action against the New York Times for its story alleging that he mistreated women — action that would take place after he’s done with this “process.” The message was that one of Trump’s first actions as a potential president-elect would be to sue a major media outlet. For all the talk about Trump’s inconsistent and whimsical policy prescriptions, he’s been pretty steady on the First Amendment. Against it, that is.