Trump has threatened to sue the Times for publishing three pages from his 1995 tax returns. The Times story quotes one of Trump’s lawyers, who argued that publication of the records is illegal without Trump’s authorization and promised “prompt initiation of appropriate legal action.” He was referring to section 7213 of the tax code stating that it is a felony for “any person to … willfully print or publish” tax returns provided “in a manner unauthorized,” which is punishable by a fine of $5,000, imprisonment for five years, or both, together with the costs of prosecution.
Most legal experts, however, are confident that Trump has no basis for a suit against a media organization like the Times, which is protected under First Amendment privileges specific to journalists. The candidate will not be able to win damages in a suit against the paper because the documents printed are of vital “public concern”—a legal precedent established nearly 50 years ago in the landmark case New York Times v. Sullivan, in which the Supreme Court ruled:
The theory of our Constitution is that ... every newspaper express its view on matters of public concern, and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious.
The Supreme Court further clarified the “public concern” protection in a 2001 case, Bartnicki v. Hopper, deciding in favor of a radio journalist who aired a phone call that was illegally taped by a third party.
The legal precedent is overwhelmingly on the side of the Times, but media skeptics have outlined Trump’s potential legal strategy against executive editor Dean Baquet. The Hill’s media columnist Joe Concha and Law Newz’s Robert Barnes, a First Amendment and tax lawyer in California, both argued that Baquet displayed “willful intent to break the law” when he publicly stated that he would risk jail time to obtain Trump’s tax records at a Harvard University forum two weeks ago. Barnes, writing for Fox News, suggested that Trump could bring a criminal willfulness prosecution against the editor, claiming that “this is as close as you get to a ‘smoking gun’ of willful intent to break the law.”
It wouldn’t be the first paper Trump has attempted to sue, but there’s one snag: If he files a suit, it would be an admission that the returns are real, which could be even more devastating to his campaign.