Was this reporter’s tweet about Trump’s tax returns illegal, or only ‘unethical?’

Kathryn Watson, DCNF

It’s possible New York Times reporter Nicholas Kristof crossed the free speech line into criminal solicitation of a felony Monday when he tweeted where IRS employees could send him President Donald Trump’s tax returns, legal experts say.

At least, it’s up for debate.

An IRS employee’s disclosure of tax returns to an unauthorized person is a felony, and federal law prohibits anyone from soliciting a crime. The First Amendment “wouldn’t immunize” that, wrote UCLA law professor and Washington Post columnist Eugene Volokh Monday.

“I think that asking IRS employees — even if not a specific employee — to leak a specific document is likely to be enough to put the statement on the solicitation side of the line, rather than the mere advocacy side” of speech, Volokh wrote. “But I can’t be completely certain of that.”

Whether Kristof’s tweet qualifies as protected advocacy of an action or criminal solicitation under U.S. code is irrelevant, however, if he meant it as hyperbole or satire, Volokh said. He compared Kristof’s case to then-candidate Donald Trump’s suggestion on the campaign trail that Russians hack former Secretary of State Hillary Clinton’s missing 30,000 emails.

William Marshall, a University of North Carolina Law School professor and White House deputy counsel under former President Bill Clinton, said it’s unlikely a judge would take Kristof’s tweet seriously.

“I think that the court has held numerous times that satire and political speech are both fundamental to the First Amendment, and I don’t think anyone looking at this tweet is going to look at it as an attempt of criminal solicitation,” Marshall told The Daily Caller News Foundation’s Investigative Group.

Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, said the criminal solicitation issue isn’t clear. If Kristof received Trump’s tax returns and published them, however, that would qualify as criminal activity under the tax code, he said.

“I am not sure his solicitation would fit within the statute, since he didn’t offer anything of value,” Von Spakovsky told TheDCNF. “But I think it is unethical for him to ask IRS employees to commit a federal crime and he could be prosecuted if he published such an illegally obtained tax return.”

Marshall, citing the Pentagon Papers case in which The New York Times published secret Department of Defense papers about U.S. involvement in Vietnam, said prosecutors are unlikely to pursue Kristof if he did publish Trump’s returns as a result of his tweet. Prosecutors are less likely to pursue Kristof for his tweet under criminal solicitation laws.

“I would say this is nothing any serious prosecutor would try to pursue,” Marshall said.

Trump has refused to release his returns, claiming they are under audit, although IRS Commissioner John Koskinen told Congress an audit doesn’t prohibit an individual from disclosing them.

The NYTimes in October published three pages of Trump’s 1995 state tax records, showing Trump took more than $900 million in losses that year. No charges have been filed against the paper.

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