Make no mistake, disclosing Trump's tax returns (and anyone else's) is a felony

One can argue about whether public officials should be expected to release their tax returns. Frankly, as a former public official at the Federal Election Commission, I believe we’ve gone way too far in denying officials any semblance of a private life.

I don’t care what President Donald Trump’s tax returns show, and I don’t think they are any of my (or anyone else’s) business.

I am interested in the principles and policies that candidates and elected officials stand for, not how much income they earned or taxes they paid.

Others feel differently, of course. But there is no question that the White House is right about what it said in the statement it released after MSNBC and a contributor at the Daily Beast, David Cay Johnston, published Trump’s 2005 federal tax return: “It is totally illegal to steal and publish tax returns.”

Take a look at 26 U.S.C. §7213, which Congress passed to protect the confidentiality of the returns filed by every adult American. Section (a)(1) makes it a felony for any federal employee to disclose tax returns or “return information.” Violating this provision can land the offending bureaucrat in federal prison for up to five years and he can be fined up to $250,000 under the Alternative Fines Act (18 U.S.C. §3571).

But this law doesn’t just apply to government employees. It also applies to private individuals and entities such as Mr. Johnston.

Section (a)(3) makes it unlawful for any person who receives an illegally disclosed tax return or return information from printing or publishing that return or that information. That is also a felony.

Furthermore, section (a)(4) of the law makes it a crime to solicit disclosure of such a return in exchange for “any item of material value,” an issue that came up recently when columnist Nicholas Kristof of the New York Times sent out a tweet asking IRS employees to send him the president’s tax return.

Just three years ago in 2014, the IRS agreed to pay the National Organization for Marriage (NOM) $50,000 to settle a lawsuit NOM filed after an IRS clerk illegally disclosed its tax return.

The return was given to Matthew Meisel, a former employee of Bain & Company, who turned it over to the Human Rights Campaign (HRC). It ended up being posted on the HRC website and published by the Huffington Post.

Neither the HRC nor the Huffington Post were prosecuted for violating the non-publication rule in this federal law. -- Whether that part of the statute could survive First Amendment challenge is open to question, although other parts are not.

American citizens are forced by law to file tax returns and to provide the federal government with highly sensitive, highly confidential financial information.

As Eugene Volokh, one of the leading First Amendment experts in the country, recently pointed out, “the government can generally restrict government employees from revealing confidential documents, including tax returns.”

The First Amendment doesn’t immunize government employees from prosecution for disclosing confidential tax information. Volokh also does not believe that the First Amendment would immunize a reporter or anyone else from the anti-solicitation provision, since under U.S. v. Williams (2008), “calls to commit a specific crime are generally not constitutionally protected.”

However, under the U.S. Supreme Court’s decision in 2001 in Bartnicki v. Vopper, the ban on actual publication is probably not enforceable.

In that case, the Court held that a lawsuit could not be brought under federal and state wiretapping laws against a radio commentator who played a cell phone conversation that had been illegally recorded by a third party.

The key issue was balancing privacy concerns against the interest in publishing matters of public importance. But the Court also noted that the radio host had not participated in the original, illegal interception of the phone call.

It would be up to a court to determine whether the interests of both the government and citizens in maintaining the privacy and confidentiality of tax returns outweighed the public’s interest in obtaining financial information on elected officials.

Again, Volokh says this issue “is not completely clear.” But he doesn’t think that such a provision against publication could be enforced against anyone who, as two of the justices said in Bartnicki, had not “ordered, counseled, encouraged, or otherwise aided or abetted the interception.”

Publishing tax return information under such circumstances is different than if you have participated in what amounts to a conspiracy to obtain the information. Volokh doubts “that Bartnicki would provide First Amendment protection for publishing tax return information that was released in response to an unlawful solicitation.”

This raises a particularly thorny problem, because without an assurance of confidentiality, our entire tax system and the ability of the IRS to collect the revenue that funds the government would be severely damaged.

As the Ninth Circuit Court of Appeals said in 1991 in U.S. v. Richey, “the government seeks to restrict disclosure of private tax information to the press … given the compelling governmental interests in maintaining a workable tax system, it is difficult to say that this regulation is unreasonable.”

The rule of law is a vital principle that is a fundamental part of who we are as a nation. Part of that principle is the concept that no one is above the law.

All of us – from the lowliest citizen to the president – are entitled to expect that the financial information we are forced to provide to the government will be kept confidential. When that expectation is broken, the government has an obligation, at a minimum, to go after those in government who violated the law.