Did Rachel Maddow Break The Law By Releasing Trump's 2005 Tax Return?
It had been a fairly slow news day on March 14 when MSNBC host Rachel Maddow dropped a teasing bombshell on Twitter: She had pages from President Donald Trump's tax returns, and she planned on airing them live on her show that night. The jury's still out on just how big of a deal the revelations that came from that airing of The Rachel Maddow Show really are, but speculation about whether Maddow broke the law by releasing Trump's tax returns could be just as interesting. In a statement just prior to Maddow's show, the White House claimed that publishing the pages broke the law — but the legality is more complex.
Despite the illegality of "unauthorized disclosure" of tax documents or information, it appears that Maddow's invocation of the First Amendment is a sound-enough legal defense to protect against any lawsuits that could arise from the publication of President Trump's tax returns.
The law side of Twitter is already abuzz with discussion about the legitimacy of Maddow's First Amendment invocation. Some are citing Barticki v. Vopper, a 2001 Supreme Court case that ruled media are protected by First Amendment rights and can legally disclose otherwise illegal communications if they didn't illegally obtain the information and are doing so to serve the public interest. David Cay Johnston, the journalist who provided Maddow with Trump's 2005 tax return, claims that he received the returns anonymously, and under the Barticki precedent, Maddow and MSNBC did not illegally obtain the information if Johnston did indeed receive them anonymously, as he claimed.
Last fall, when the New York Times released Trump's tax returns from 1995, a debate raged about whether or not the Times had broken the law like his campaign claimed. Although federal law does prohibit the "unauthorized disclosure" of tax returns or tax return information, the Times (and now Maddow) claimed that they were exercising their First Amendment rights and released the information to serve the public interest. At the time, many legal scholars agreed that the Times were likely correct in their legal analysis of their First Amendment rights. The legality of the publication of Trump's '95 tax returns has yet to be challenged in court, and became overshadowed by the fast-moving news cycle that circled the 2016 presidential election.
It remains to be seen if the White House will file any lawsuits against MSNBC for publishing Trump's tax returns or whether they will simply continue to claim that Maddow's actions were illegal, stoking the fires of public opinion among the president's fan base.