March 17 2017
President Trump’s tax returns have long captivated the media. Convinced that nefarious activity lies beneath, the media has called for congressional hearings into the president’s tax returns, pushed the Ways and Means Committee to request those returns, and even gone so far as to invite IRS agents to “leak” them.
This obsession has finally borne fruit. Somehow, Rachel Maddow obtained access to part of Donald Trump’s 2005 tax return. This return shows that the president paid some $38 million in taxes — an effective rate of about 24.5%.
The return itself reveals nothing untoward, but questions as to its origin and publication do raise serious concerns.
Presumably, there are a limited number of people who have access to one’s tax returns. Here’s a breakdown of who could have been involved in making the 2005 return public and their culpability, if any:
The Internal Revenue Service always retains a copy of federal returns. Indeed, the agency may audit a taxpayer six years after a return is filed. (Make sure to keep all of those old receipts!) If an IRS employee took the New York Times up on its offer and leaked confidential tax information, that person may be guilty of a felony.
Federal law makes it a crime for an IRS agent (or any other federal employee) willfully to disclose unauthorized tax returns. If an agent did indeed willfully release President Trump’s unauthorized tax return, he or she could be subject to five years in prison and a fine of up to $5,000. Upon conviction, federal law provides that he or she would also lose his or her job.
A tax preparer or attorney.
A business the size of Donald Trump’s would also hire a slew of outside accountants and tax lawyers to complete its returns. Accountants are under an ethical obligation not to disclose confidential client information without consent (subject to certain exceptions). This duty extends to tax returns and wayward accountants may be sued for a breach of duty.
Attorneys also owe an ethical obligation to their clients to preserve confidential information. Rule 1.6(a) of the Model Rules of Professional Conduct provides that an attorney “shall not reveal information relating to the representation of a client unless the client gives informed consent.” A lawyer’s breach of this foundational principle in the lawyer-client relationship may lead to suit and to disciplinary action by the state bar association.
The Trump Administration.
Of course, the principal, Donald Trump, and some of his own executives and employees would receive a copy of any tax returns. Some have speculated that, since the 2005 tax returns reveal nothing sinister, they may have been leaked by President Trump or someone close to him. They point to the fact that the documents are stamped “Client Copy,” which suggests they came from outside of the Internal Revenue Service.
The criminal code would not be implicated in such a circumstance; there is nothing unlawful about releasing one’s own tax returns.
Regardless of how Rachel Maddow obtained President Trump’s 2005 tax records, questions exist regarding her decision to make them public. Did she break a federal law by publishing an unauthorized tax return? Almost certainly. 26 U.S.C. § 7213(3) makes it unlawful for “any person” willfully to publish or print an unauthorized tax return. Maddow could be facing a felony charge; up to five years in jail; and a fine of up to $5,000.
Now, MSNBC and Maddow are probably banking on a federal court finding 26 U.S.C. § 7213(3) unconstitutional. The Supreme Court has aggressively protected the media’s First Amendment right to publish information about matters of public concern. It has, for example, allowed newspapers to print the lawfully-obtained names of rape victims and also yet-to-be-convicted juvenile suspects, and it has permitted a radio station to air conversations illegally recorded by a third person. But the precise issue here has not been presented, and the Supreme Court looks to the facts and interests at stake in these cases. It has steadfastly refused to answer categorically such questions under the First Amendment.
The intrigue of Trump’s 2005 tax return is likely to pass from the public’s attention quickly, since nothing scandalous was revealed. But the American people ought to be interested in how such personal documents were made public. We still expect such documents to remain private, and rightly so.
Erin Hawley is a legal fellow at the Independent Women's Forum, an associate professor of law at the University of Missouri, and a former clerk to Chief Justice John G. Roberts Jr.