WASHINGTON ― If Donald Trump were to put his money where his mouth is, his lawyers should already be preparing to sue The New York Times over its weekend publication of a 1995 tax return. The document shows him declaring a loss so big, that it suggests his business acumen maybe isn’t as great as he claims.
In that watershed report, one of the GOP presidential nominee’s longtime lawyers, Marc Kasowitz, is on the record warning the newspaper that going public with the tax return would lead to “prompt initiation of appropriate legal action.”
But legal experts with an in-depth knowledge of the First Amendment are highly doubtful Trump stands a chance in the courts ― especially if the Times did its due diligence and didn’t coerce the information from the person who anonymously mailed it to them.
“This is open-and-shut,” said in an email Geoffrey Stone, a University of Chicago law professor who is a leading scholar on freedom-of-the-press issues. “As the Supreme Court made clear in the Pentagon Papers decision, the press cannot be held liable for publishing truthful information that is relevant to the public interest in the absence of a clear and present danger of grave harm.”
The Washington Post’s Callum Borchers pointed to a federal statute that makes it a crime for “any person” who unlawfully receives tax information to publish it. But some have pointed out that the statute only applies to disclosures originating from government officials ― and here it appears to have been made by someone within the Trump organization.
Adam Liptak, who was a media lawyer for the Times before he became its Supreme Court reporter, pointed to Bartnicki v. Vopper, a 2001 case where the high court said that “publishing matters of public importance” overrode the privacy interests of the person who felt violated ― even if it was a third person who acted unlawfully and helped the publisher go public.
“We think it clear ... that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” said Justice John Paul Stevens in his opinion for the court in Bartnicki.
Writing in the legal blog Concurring Opinions, University of Washington law professor Ronald Collins surveyed several First Amendment experts on Trump’s chances in an eventual lawsuit against the Times, and the overwhelming consensus is that the former reality TV personality is highly likely to lose ― and lose badly.
“A politician may not want his financial records subject to public scrutiny, but he has no power to prevent or punish a newspaper for publishing records he would like to keep from public view,” said Cornell law professor Steve Shiffrin, adding that his lawyer’s threat to the Times “is both idle and ignorant.”
Robert Corn-Revere, a law partner with extensive experience in First Amendment litigation, said the assertion that the press can’t analyze the tax returns of a presidential nominee without first getting the candidate’s authorization is “preposterous.” “It reveals a depth of ignorance that is unprecedented even in this election cycle,” he told Collins.
“Trump’s First Amendment privacy interest in whether he pays his taxes went out the window when he decided to run for the office of chief law enforcer,” added Burt Neuborne, a New York University law professor and former legal director for the American Civil Liberties Union.
That’s only a small sampling of expert opinions in Collins’ survey. But they make clear that Trump’s threatened lawsuit has very little going for it ― and it says more about the candidate’s litigiousness and overall disdain for press freedoms than anything else.
Tim O’Brien, a former editor of The Huffington Post who was personally sued by Trump and has seen his tax returns, suggested the reason for all the bluff and his surrogates’ attempts to spin the revelations has more to do with what he may be hiding from the American public.
“‘Operate the tax code’ is a fun, Trumpy locution, but this has nothing to do with genius,” O’Brien wrote in Bloomberg View. “If it did, Trump would have already released his returns in full so the public could have a transparent look at his brilliance.”
Editor’s note: Donald Trump regularly incites political violence and is a serial liar, rampant xenophobe, racist, misogynist and birther who has repeatedly pledged to ban all Muslims — 1.6 billion members of an entire religion — from entering the U.S.