Monday, October 03, 2016


It was legally risky to leak pages of Donald Trump's tax returns to a New York Times reporter, and it was also legally risky for the Times to publish them. But what Josh Marshall wrote about this suggests to me that the leaker knew exactly how to tiptoe around the law:
This is actually a topic I know something about from years of running a news organization and working with media lawyers to do it. As a general matter, if documents fall from the sky into your lap, you are pretty much free to do anything with them you want - even if bad acts were involved as they made their way to you. It's a very different matter, or can be, if you were in communication with or working with the person who committed the bad acts prior to their commission....

There's an additional advantage to the Times scenario. Even if you have no legal responsibility for bad acts, you can still get in trouble. A court may want to get at the person who committed the bad acts. And a court can compel a journalist to identify that person.

... the Times scenario is an ideal one from the media organization's perspective. Getting an anonymous email is a textbook example of what is meant by the 'falling out of the sky' scenario. Not only does the Times have no legal culpability, it has nothing to divulge. It doesn't know who the source is or what they did to get the documents. It's as free and clear as you can get.
Marshall continues, citing a Washington Post story about the legal risks:
The Post notes federal laws which bar publication of tax returns. But I'm pretty sure (though not certain) that those laws apply only to federal tax returns. These are clearly not federal tax returns the Times acquired. They're tax documents for New York, New Jersey and Connecticut which reference a critical federal tax declaration. Not the same.
Assuming that Times reporter Susanne Craig is telling the truth when she says that the documents arrived in her mailbox unexpectedly, with no indication of a source, this leaker apparently realized that the Times would be in less legal trouble from an anonymous leak than from a leak in which Craig knew the leaker's identity. To me that suggests a leaker who knows the law, or is being advised by someone who knows the law. The leaker knew enough not to contact Craig and say, "Hi, I'm blah-blah-blah, and I have some documents you might be interested in."

And if these were the only documents Craig received, that suggests that the leaker knew the difference in the law regarding state and federal documents. (Craig has been coy when asked whether there are more documents.)

The other possibility is that there actually was some contact between Craig and the leaker, and Craig is giving us a cover story about how she got the documents. But if she's telling the truth, her leaker knew anonymity povided a legal shield. That suggests someone familiar with tax law and/or media law. At least that's how it looks to me.


Victor said...

And I doubt this will move even one of the t-RUMPster's bigoted true believers!

It may, though, make some independents aware of just how much of a flim-flam grifting man, this t-RUMP is!

PDiddie said...

Tiffany Trump or Marla Maples? My money's on the ex.

homelessonthehighdesert said...

I would like to hear more from Tiffany, if she isn't as drug addled as Laura Bush. He raped her mother, and as a short'fingered white dog who claims to be a "Christian" he stereotypically fits the profile of a daughter-fucker.

It would be irresponsible not to speculate.

Ten Bears

Yastreblyansky said...

I'm still tempted to wonder if the leaker couldn't have been the Trump Organization, on the theory that they could have followed the same thought process as you did in the last post and decided it would be better for the public to be thinking about taxes than the other developments of last week (not just his mental state but the clearly criminal self-dealing of the Trump Foundation). His explanation of why it's OK for him to not pay taxes is perfectly within Republican principles and certainly won't lose him any votes he already has.

sdhays said...

@homelessonthehighdesert: There's strong evidence that he raped his first wife, Ivana, but I'm not aware of any accusations from Marla Maples, Tiffany's mother. But with the many things he's said publicly about Ivanka, it would not surprise me at all if his daughters weren't safe from him either.

Such a vile, disgusting man.

CF2K said...

Noah Cross.

Feud Turgidson said...

It's not necessary for the leaker to have some fairly sophisticated understanding of the Tax Code, media law and the limits of the specific prohibition. But at a minimum, assuming the leaker is not herself such a rarified legal expert (It's overwhelming probable the leaker is a woman.), she'd need to have (not in any particular order):
1) ACCESS to the documents, of the sort that the leaker's identity would not be manifestly obvious or at least strongly likely;
2) CHARACTER, in the sense of some combination of courage, chutzpah, and personal motivation, and
3) SOPHISTICATION in not only having access to or to the product of quite specialized, sophisticated legal advice in which she felt sufficient trust.

I also grant that sufficient motivation, such as for revenge, even patriotism, would be capable of substituting for the need for a degree of deniability, principled courage, and possibly even sophistication (e.g. she could be trusting to advice received only indirectly from a specialist attorney). But as a factor, RECKLESS revenge doesn't strike me as all that likely here, because this material has been published with THREE levels of legal prophylaxis.

Level One: All 3 published title pages are on their face from STATE returns. That alone suffices to avoid application of the codified FEDERAL prohibition. Our courts are required to interpret ("construe", to use the $500/hr word) criminal laws strictly. This applies even to prohibitions that became law as part of a broader legislative purpose and society application than criminal reform. This is an absolute answer to any charge of having violated the prohibition.

L2 is the "dropped from the sky" story the NYT is pushing.This also is stand alone sufficient; but without more - IOW if this were the only 'defense' - it amounts to an invitation to some official investigation, by the FBI arm of the DoJ on behalf of the IRS agency of the USG, or by a state (not necessarily restricted to a state attorney-general - note that one of the 3 states for which return title pages was published was New Jersey, currently still under a Republican governor, and the NJ state AG is filled by gubernatorial noiminee Chris Porrino, former CoS to Governor Christie, currently occupying his office on an "acting" basis pending confirmation - meaning there's serious risk here of the leaker being pursued by the office of the NJ state AG), or by Congress.

Note that while none of NJ, NY state and Connecticut has any state tax code provision that parallels the US federal Tax Code prohibition, other states where Trump has conducted business activities, eg Florida, DO have state laws in place that might be resorted to by a state prosecution authority to 'close the loophole'. Point being: the only state return title pages published were for states WITHOUT any such parallel prohibition.

L3: Public Interest, which Dean Baquet has been pushing (The Marty Barron envy here is strong: it suggests that the commitment to the HRC Swiftboat material is a source of big-time ongoing angst hallway between the executive suwits of the publisher and senior editor of the Old Grey Lady.) really puts the leaker at risk, because it relie on the amount of commitment of the reporter or editor Baguet or publisher Punch Humpflinger or all 3 to go to prison rather than testify as to the sourcing (Does this betray a degree of skepticism about the Dropped From The Sky story? Yah, that's not nearly so pure as it's being portrayed.)

THREE CONDOMS!!! That's some cautious intercourse.

Ernest Lamonica said...

It was Marla Maples. I bet. As far as this moving Trump supporters. I been saying for a while Trump ceiling is 42%-44%. 22% Deplorables. 22% GOP no matter what. All of Trumps Bad Week could make the 22% GOP no matter what 13%-to 15%. That would really hurt.

Feud Turgidson said...

Maples would be my first guess, as well. Wife 1 got into one horrific legal and crap battle with Trump, but she actually came out pretty well because his big business failure that he used to duck all income taxes for years to come came AFTER the core of his settlement with her was set, plus his taking in the ducklings about him (to duck funding them thru child maintenance to her) meant her settlement capital was largely undiminished by child care expenses. Maples, tho, was dealt with quite differently: there was a prenup, sure, but it makes sense that it would have been tied to a very low start point, which he could sell to her by having her as co-signatory to their various joint personal income tax returns. And not only did she end up badly shafted by a prenup tied to reflecting that view of his net worth, he's never taken in his daughter with Maples like he did his kids with Ivana. Plus don't forget, she and a ghost writer put together that "All That Glitters Is Not Gold" book that Trump only succeeded in suppressing by paying off her and her ghostwriter.

And then there's the Jack Mitnick factor. No one in Mitnick's position would be willing to talk to the press in confirming the authenticity of client documents and providing details like he did in the absence of client permission; in the legal world, that information is owned by the client. But in this case, he had TWO clients: Trump & Maples - and whether he explained it this way to them or not (I'm sure he would have: top tax speciality attorney's are notorious for their precision on such things.), the fact is that they would be BOTH joint and several 'owners' of that client information.

Add to that the Times reporter into whose mailbox the tax returns pages were dropped is female, I'm thinking I may well have been at least one more safety condom involved in this particular screw.