The New York Times risked legal trouble to publish Donald Trump’s tax return
—Washington Post headline, Oct. 3, 2016
Donald Trump Would Have Trouble Winning a Suit Over the Times’s Tax Article
—New York Times headline, Oct. 4, 2016
FIVE DAYS AFTER Sue Craig’s email, I sat in a conference room on the third floor of the newsroom with four reporters. The table was piled high with files and folders of public documents about Trump’s finances gathered over months. Sue was there, along with David Barstow, Russ Buettner, and Megan Twohey, all of whom had been working on stories about the labyrinths that were Trump’s businesses. Someone handed me the three pages that had come in the mystery mailing: one page each from the 1995 returns that Trump and his then-wife Marla had filed in New Jersey, New York, and Connecticut.
For months, the questions about whether Trump would release his returns, and the possibility that someone might leak them, had been one of the minor chords of campaign coverage. For those who were aficionados of Trump Tax Return Theater, the show had actually started way back in 2011 when, during the height of his birtherism fever, he tied the release of his returns to the release of Barack Obama’s birth certificate. “Maybe I’m going to do the tax returns when Obama does his birth certificate,” he said on ABC during an interview with George Stephanopoulos. A year later, he offered some free advice to Mitt Romney: releasing tax returns is a “positive” because it shows “you’ve made a lot of money.” Then in 2014, he assured a TV interviewer that if he ran for office, he would definitely release the returns: “If I decide to run for office, I’ll produce my tax returns, absolutely. And I would love to do that.” Then as Candidate Trump in January 2016, he let the world know that he and his campaign were working on getting the paperwork together for disclosure but that people needed to understand there were some difficulties because—as if people needed to be told—his tax return “is not, like, a normal tax return.” But by the time February rolled around, his stock answer had changed: the problem was now the audit. The IRS, he said, was in the middle of an audit, and as soon as that was over, the tax returns would be shown to the American people. Before long, after all the equivocating, there was little doubt that Trump was going to become the first major-party candidate since 1972 to decline to release his returns. As the months dragged on, editorial writers, including those at The Times, called out Trump for failing to disclose them. His political opponents banged away at the issue. Interviewers repeatedly asked him about it. But nothing was being shown to the public—not until Sue Craig checked her office mailbox.
Two weeks earlier, Dean Baquet had been at Harvard making his own headlines about Trump’s tax returns. He was doing a presentation with Bob Woodward of The Washington Post and Laura Poitras, the independent journalist behind the Edward Snowden disclosures. The panel was covered by CNN Money, which headlined its piece the next day with “N.Y. Times editor: ‘I’d risk jail to publish Donald Trump’s taxes.’” Poitras had ominously informed Woodward and Baquet that their lawyers would probably warn them that they would face jail time if they published leaked tax returns. She pressed the point with them: “If the Post or the Times were to get Donald Trump’s tax returns, would you publish them?” As CNN reported it, “Both said yes, that they’d argue with the attorneys to do so.”
I lost it as I read the CNN story that morning. Did Dean really think I would tell him that he might have to go to jail if he published Donald Trump’s tax return? We had been through much harder stories than that—the secret WikiLeaks cables, the Snowden disclosures, the hard and powerful reporting done by Jim Risen and Eric Lichtblau on government surveillance in the Bush era. I had never said no. No Times lawyer had. No Times lawyer was going to walk away from the legacy of the Pentagon Papers. I shot off an intemperate email (abandoning my Trump-endorsed bedside manner): “This was embarrassing to me (and, yes, I am hearing from people already this morning). Do you really think I’d advise you not publish something like this? Has that ever happened on any story, including Risen/Lichtblau, WikiLeaks, Snowden, or anything else?”
Dean came back with an email telling me to watch the video. He hadn’t said it, or at least not like that. It had been a confusing interchange among Bob, Laura, and Dean, working from Laura’s mistaken assumption that publishing the returns would be a crime. It was all hypothetical anyway. Nobody had the tax returns.
The image of the naysaying newspaper lawyer standing in the way of the crusading journalist is baked into newsroom culture and a favorite of the movies. There are exceptions, of course. In Spotlight, the Academy Award–winning story of the Boston Globe’s breakthrough reporting on pedophile priests, the paper’s outside counsel, Jon Albano, is shown going to court and winning critical documents for Robby Robinson’s reporting team. But the more common thematic note was the one struck in The Insider, the 1999 movie about how CBS had pulled its punches after 60 Minutes reporters proved that tobacco companies were hiding what they knew about the real risks of smoking. The film stars Al Pacino as CBS producer Lowell Bergman, who tracks down the story of Big Tobacco’s duplicity after cultivating tobacco scientist Jeffrey Wigand as a source. In a pivotal scene in the movie, the 60 Minutes team is told by the CBS lawyers that they can’t go ahead with the broadcast they had planned. Legal threats from the tobacco industry had made it impossible. CBS’s reporting gets passed to other journalists, the story gets published, and Bergman walks away from CBS.
It was one of those movies that stays with you if you are a lawyer for a news organization. It also represented the sum total of my knowledge of Lowell Bergman on the day he walked into my office at The Times in 2002. He was now working with David Barstow on an investigation into the dangerous working conditions at foundries owned by McWane, Inc., a mammoth industrial concern that produced pipes. I had been on the job for maybe two weeks. Lowell started asking me legal questions about filming in Alabama, where they could go with hidden cameras, when they had to turn off the sound recorder (because of eavesdropping laws), what legal protections we had for any footage they got. I wasn’t really sure what the law of Alabama had to say about any of those things. I just knew that I didn’t want to end up in any movie portrayed, CBS-style, as some corporate legal puke telling Lowell Bergman he couldn’t do something. He had ended up with Al Pacino playing him. God knows what fifth-tier actor would end up playing the sweaty-palmed New York Times lawyer in the sequel.
Not that it was much of a stretch to say yes. As a legal department, we had long embraced the ethos that we were there to help get things in the paper, not keep them out. We were blessed with a management team that stood behind us and behind our journalists, that understood risk was the price of doing high-end journalism, and that knew that if our journalists weren’t pushing boundaries with stories, we as a paper weren’t doing our jobs. Four months into my tenure at the paper, William Safire sent a draft of his column to Legal. It began:
Let me see if I can write today’s column without getting sued. It has to do with my old pal Lee Kuan Yew, who prefers to be called “senior minister” rather than dictator of Singapore, and whose family members have been doing exceedingly well lately.
In kowtowing to the Lee family, the Bloomberg News Service—the feisty, aggressive newcomer to coverage of global finance on cable and computers—has just demeaned itself and undermined the cause of a free online press.
The column came to my colleague George Freeman, who had been in Times Legal for two decades and had seen just about everything there was to see in newsroom legal risk. Just not something like this. Singapore had notorious libel laws. Its leaders thought nothing of using the laws to go after American publishers (as well as the beaten-down local press). George did what he had never done before: he called our publisher, Arthur Sulzberger Jr. He wanted Arthur to know that Safire was about to take us legally somewhere we had never gone before. Arthur came down to the legal department in The Times’s old headquarters on 43rd Street. He stood in the hallway between my office and George’s and read Safire’s column. “Publish and be damned,” he said at last. He turned to walk away and then stopped, saying, “I’ve never understood what that meant, but I always wanted to say it.” The column went out. Singapore didn’t respond.
I couldn’t quite grasp why anyone was struggling with the idea of publishing a story about Trump’s tax returns. Sure, there were lines that journalists should never cross—somebody buying the files from a corrupt IRS official, someone breaking into an IRS office and absconding with them in the night, someone aiding and abetting a theft—but nothing like that was ever going to happen at The Times. Maybe the nervousness was just an offshoot of the Trump Factor. His repeated threats of lawsuits, his imposition of a blacklist of reporters banned during the campaign, his unceasing denunciation of The Times and other news organizations—maybe it all came together to create a sense of foreboding that things were different with Trump, that the normal rules didn’t apply. Still, our reporters had continued to look for a source for the returns. One day in the summer of 2016, Sue Craig had shown up in my office and said she had a long-shot possibility as a source—an unlikely candidate to help us, but you never know. Like some demented host on a journalism game show during the lightning round, she asked me to name every type of person I could think of who may have seen Trump’s tax files. I went for it: his accountants, his lawyers, the finance team at the Trump Organization, the lawyers at the company, everyone’s secretaries, ex-spouses, his children maybe, their spouses maybe, the guys from IT (they know everything if they want to), the dude running the copy machine, Harold from the mailroom, the office cleaning staff, I give up. Sue got up to leave. “I just wanted to see whether my source would be identifiable if I got the returns,” she said. I couldn’t tell if I had won the lightning round or not.
Back in the conference room on the third floor, I studied the documents. They looked authentic, but the reporters needed more than that. We talked about whether there were documents somewhere that could confirm the numbers listed on the returns. Russ Buettner showed me files he had obtained through public records requests from the New Jersey Casino Control Commission from the time period in question. The key passages that could have helped us authenticate the document had been redacted. One number stood out on the tax forms: $915,729,293, the amount of the loss that Trump was declaring. The reporters had noticed how funky it looked: the first two digits did not line up with the other seven. It was suspicious, the kind of thing someone would do to entrap us, add a few hundred million to the most important number on the forms. On the other hand, had someone really gone through the trouble of creating pages from a 1995 tax return, down to the addresses and Social Security numbers? And why would a dirty trickster bother to do three states when the trap could be set with just one of them? David Barstow wanted to know if there were other places I could think of where the numbers might be hiding in plain sight but buried in some public record. Everything I came up with—regulatory filings, court cases—had already been pursued by the reporters. No luck.
The next time I heard from the reporters was four days later, on a Saturday afternoon, when David sent me, without comment, a draft of the story they had put together. He had managed to crack the mystery of the $915,729,293. Since our Tuesday meeting, he had made his way to Florida, looking for the retired accountant who had done the tax preparation: Jack Mitnick. It took some coaxing, the reporters later recounted in a piece for The Times Insider column, but David finally got Mitnick to meet him in a bagel shop. Mitnick confirmed that the pages were real. And what about those suspicious miscast digits? The result of the software he was using at the time. It couldn’t accommodate a number that was so … well, as Trump would say … huge, so an IBM Selectric typewriter was forced into service. Meanwhile, as David corralled the accountant, the reporters began talking to tax experts and did a deep dive into the 1995 tax code.
As the story draft was coming to me, David was contacting the Trump campaign:
Dear Mr. Trump,
We are writing to seek your comment for a story we are preparing to publish as soon as possible. We’ve obtained portions of one of your tax returns and those portions reveal that you declared a nine-figure net operating loss that, according to the tax experts we’ve retained, could have legally allowed you to avoid paying federal income taxes for up to 18 years.
We ask that you or your team get in touch with us immediately.
Sincerely,
David Barstow
The initial response came from Hope Hicks of the Trump communication staff:
David,
Please provide us what you are referring to so we can adequately respond. Additionally, we request that you do not publish until we have had the opportunity to review what you submit and we provide a response.
Best,
Hope
David responded: “Are you guys able to meet with me in NYC right now?” Hope said that was not possible. She asked him to email whatever he had. He did:
Hope,
We’ve obtained portions of Mr. Trump’s 1995 tax returns. The documents show that Mr. Trump declared a loss of $915,729,293 for that year. The documents also show, among other things, that Mr. Trump filed jointly with Marla, claimed one dependent child, reported $7,386,825 in taxable interest income, $3,427,092 in business income and $6,108 in wages, salaries and tips. But the main focus of the story is on the NOL of $915 million and how, according to the tax experts we’ve consulted, that could allow him to avoid paying federal income taxes for up to 18 years.
We can give you the rest of the afternoon to decide how you want to respond.
Please let me know,
David
That was all that Trump’s legal team, led by Marc Kasowitz, needed to gear up. One of Kasowitz’s partners dashed off a one-page letter to The Times.
“As you are no doubt aware, an individual taxpayer’s income tax returns are confidential and statutorily protected from public disclosure by state and federal law.” He then pointed out with lawyerly obviousness: “Mr. Trump has not authorized the disclosure of any federal or state income tax returns to the New York Times.” The release was “unauthorized, improper and illegal,” and legal action would be taken “if necessary.”
Dean jumped in on his own (worried perhaps that The Times’s legal department would get as weak-kneed as Laura Poitras predicted it might at Harvard the month before), making the case for the public interest in the information. Kasowitz replied: “I demand that The New York Times promptly return to me any of Mr. Trump’s tax returns or copies thereof in its possession, and refrain from any disclosure of those returns or any information from them.” We ignored him.
Meanwhile, Hope Hicks was back on her email, giving Barstow what can only be described as one of the classic Trumpian responses:
David,
Please see the campaign’s statement below. It is our strong preference you use this in its entirety.
The only news here is that the more than 20-year-old alleged tax document was illegally obtained, a further demonstration that the New York Times, like establishment media in general, is an extension of the Clinton Campaign, the Democratic Party and their global special interests.
What is happening now with the FBI and DOJ on Hillary Clinton’s emails and illegal server, including her many lies and her lies to Congress are worse than what took place in the administration of Richard Nixon—and far more illegal.
Mr. Trump is a highly-skilled businessman who has a fiduciary responsibility to his business, his family and his employees to pay no more tax than legally required. That being said, Mr. Trump has paid hundreds of millions of dollars in property taxes, sales and excise taxes, real estate taxes, city taxes, state taxes, employee taxes and federal taxes, along with very substantial charitable contributions.
Mr. Trump knows the tax code far better than anyone who has ever run for President and he is the only one that knows how to fix it.
The incredible skills Mr. Trump has shown in building his business are the skills we need to rebuild this country. Hillary Clinton is a corrupt public official who violated federal law, Donald Trump is an extraordinarily successful private businessman who followed the law and created tens of thousands of jobs for Americans.
Best,
Hope
I was confident that we were right on the law, but I did worry about the way some judges get confused about the First Amendment. I was concerned that a soft-headed judge could be dredged up by the Trump lawyers and issue an injunction. We would ultimately win on that, but why get caught up in a legal drama? I recommended to Dean and his deputy Matt Purdy that we publish as soon as possible. The story appeared online that night under the byline of the four reporters:
Donald J. Trump declared a $916 million loss on his 1995 income tax returns, a tax deduction so substantial it could have allowed him to legally avoid paying any federal income taxes for up to 18 years, records obtained by The New York Times show.
That night, Barstow wrote to me saying he was outraged by the legal position being taken by Trump and his lawyers. I told him he should ignore the noise. “They labor under the mistaken belief that the Bill of Rights starts with the Second Amendment.”
The Trump spinners descended on the Sunday talk shows the next morning. They were surprisingly silent on the legal issue of disclosing the tax returns. They also decided to give their incantation of “fake news” a rest. Good thing, since the only fake news to be found that morning was what they were saying. Rudy Giuliani, the Sunday-morning apologist in chief for the Trump campaign, praised Trump for being so smart about taxes and then recast himself as a journalism critic: “The New York Times writes this long story, and then somewhere around paragraph 18, they point out there was no wrongdoing.” It wasn’t exactly paragraph 18. It was more like … paragraph 1. That would be the paragraph that first mentions that what Trump was doing in 1995 he was doing “legally.”
On Saturday night, as the story was about to be blasted onto the internet, I had shared with my boss, Times general counsel Ken Richieri, the correspondence from Trump’s lawyers. “Just so you are in the loop. I am not worried about this one. The story is close to ready.”
I was at the Yankees game the next afternoon. They were playing dismally against the Orioles. Baltimore catcher Matt Wieters had hit a home run in the second and then another in the sixth. My phone rang. It was Sue Craig. She wanted to know whether I had seen The Washington Post story. I explained to her about how the Yankees were sucking and Wieters and the two home runs, all of which meant I had no idea what The Washington Post was saying.
“The New York Times risked legal trouble to publish Donald Trump’s tax return,” read the headline. “Dean Baquet was not bluffing,” the story began, and all of a sudden we were back at the Poitras-Woodward-Baquet gabfest at Harvard with the brave promises to take one for the team and go to jail to publish the returns. After citing various scary statutes that make it a crime to reveal tax returns (if you happen to work for the government), the article begrudgingly acknowledged that most experts thought that the First Amendment would provide a defense to The Times, but the point was buried, and the headline got punched up on Twitter and shared. Even The Times’s own reporters were pushing it out. (Another writer at The Post attempted something of a course correction later that day, posting an article headlined “Donald Trump, victimized by the First Amendment he abhors.”)
Back at the office Monday I was repeatedly asked about whether we had broken the law. I understood that it was all a little counterintuitive for people who didn’t spend their days immersed in the powerful—some would say “disturbing”—ways the First Amendment worked when government tried to criminalize true speech. But after decades of laying down the law in this area, the Supreme Court had left little in doubt. Forty-one years earlier, almost to the day, The Virginian-Pilot newspaper had published a story identifying a Virginia judge who was under investigation. A grand jury indicted The Pilot’s parent company, Landmark Communications, for violating Va. Code § 2.1-37.13, which made it a crime to divulge the identity of a judge facing disciplinary proceedings by a state ethics commission. Joseph W. Dunn Jr., the paper’s managing editor, took the stand at trial. He testified that he considered the information of significant public interest and decided to publish it. He knew that Virginia law made it a crime for someone involved with the disciplinary proceeding to disclose the name, but he didn’t understand that to apply to a newspaper reporter covering the story. The court saw it differently and found the newspaper guilty of a misdemeanor and set a fine of $500 plus the costs of the proceeding.
When the case finally arrived at the Supreme Court in 1978, the court was still in the midst of its decades-long push to give serious heft to the First Amendment. It acknowledged that Virginia had good reasons to keep judicial disciplinary procedures confidential as a way to assure fair adjudication of complaints and protect the reputation of judges who might not have done the terrible things they happened to be accused of. But, in the end, The Pilot was talking about a constitutional right to publish something true and in the public interest. It was the business of state officials to keep secrets, and those people directly involved in the proceeding could be punished for talking, but none of that extended to the press, which was in the business of publishing secrets. In the sort of deadly judicial language that always manages to make pedestrian what should be cloaked in grandeur, the court said, “We conclude that the publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth’s interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom.”
If Sue’s mystery mailer happened to be a government employee who pinched the forms and headed for the copy machine, that person was likely in trouble. No First Amendment right protected the source. For us, it was just the opposite. Whatever those scary statutes quoted in the foggy-brained article in The Washington Post might say, we were on the right side of the law. The decision in Landmark Communications v. Virginia would cut off at the knees any misguided attempt by prosecutors or Trump’s own lawyers to punish The Times.
Over the next 20 years, the Supreme Court kept coming back and driving home again Landmark’s core principle: governments were free to pass laws making it a crime to reveal certain kinds of information—the names of juvenile offenders, the identities of rape victims, the wiretapped contents of a phone call—but none of those laws could get over the high wall that was the First Amendment and be used to penalize journalists when the information was in the public interest and the journalists had done nothing wrong to get it. That was true even if the reporters’ sources had themselves engaged in lawbreaking to get the information. An anonymous delivery not unlike the one that graced Sue’s mailbox had played a leading role the last time the Supreme Court took on the issue. In a 2000 case called Bartnicki v. Vopper, some civic-minded good citizen discovered that his cell phone was picking up private phone calls between the head of a teachers union in Pennsylvania and the union’s top negotiator. Like all good negotiators, the two brainstormed about the right strategy that would be needed to persuade the school board to stop being so cheap with the teachers, one bit of which was dramatically captured on tape and then forever enshrined in the Supreme Court record: “We’re gonna have to go to their, their homes.… To blow off their front porches, we’ll have to do some work on some of those guys. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).” Always nice to see the people charged with educating our children showing their creative problem-solving skills.
The good citizen—that would be the person committing a crime by illegally recording the calls, which may explain why he never chose to out himself—decided the right course of action was to drop the recording off anonymously in the mailbox of a man called Jack Yocum. Yocum sat as the titular head of a taxpayers group that was not so fond of the teachers union. He found the tapes too good to keep to himself. He handed them over to a radio station, which broadcast them, undoubtedly putting the local citizenry on high alert for porch bombings. The negotiator and the union head sued the radio host, but nothing had changed in the First Amendment since Landmark. Whoever recorded their porch-bombing conversations had broken the law, and the union reps were free to go after that person (good luck finding him), but that had zero to do with the radio station’s First Amendment right to air the recordings. Absent some compelling government interest that has never been found in any of the Supreme Court cases, publishers and broadcasters remain free to publish even pilfered information.
It’s easy to understand why that body of law could confuse people. The laws imposing confidentiality on our private phone calls and rape victims’ names and juvenile court proceedings strike most people as right-minded, the kinds of laws that we should have. If the press is free to ignore those laws, even when their sources have broken them, it seems to defeat the whole purpose of trying to keep the information confidential in the first place. Shouldn’t the press have to obey the law like everyone else (even if the distinction between who is the press and who is everyone else has faded)? The hard nut is realizing that the alternative—permitting governments to pass laws that would force the press to hide valuable and true information from its readers—would be worse. The First Amendment, as we have come to understand it over these last 60 years, is designed to prevent just that. Whether reporters are barred from reporting a story prior to publication or have to face penalties and lawsuits afterward, the impact is the same. The government is being given the power to decide what should be published. That is not how America is supposed to work, no matter how many letters Trump’s lawyers write to The New York Times. The system is far from perfect. The government has enormous powers to root out and punish public employees who leak secrets, even when the leaked information is of indelible value to the public. (Edward Snowden is still sitting in Russia, avoiding prosecution, while all of us over here now know just how out of control the intelligence agencies had been, sucking up data about our private phone calls and emails.) And we are doomed to debate for a long time whether all those Supreme Court rulings apply only to people who look like the journalists in All the President’s Men, Spotlight, and The Post or whether the 19-year-old slacker sitting in his mom’s basement in his underwear manning his Twitter account and eating Twinkies can partake of the First Amendment’s protection when he receives leaked information, just the same as The New York Times. Talk all we want about those legal puzzles, there was absolutely no doubt in my mind that our Trump tax story was sound.
Some of our readers failed to share my certainty. There were those—this was to be expected—who had a hard time focusing in the midst of the campaign’s furies. One wrote in the story’s comments section: “The American Mass Media has gone totally berserk! They are lying. They are manufacturing stories. They are hiding bad things about Hillary and good things about Trump. This is incredibly dangerous for our freedom - when the entire national media has completely ejected Journalistic Integrity, Objectivity, and their duty to just report the facts. Are we being prepared for a coup?” But others cut to the chase: “Has any commentary addressed the fact that the New York Times just violated the law? Intentionally, wantonly viciously…” Others found common cause with that reader: “Please explain how the Times [and any other media outlet reporting same] is different from Gawker or their ilk? Private information—and admittedly illegally gained—being published and disseminated. Public filings certainly are such: public but private records are private are they not? Public interest you say? Well perhaps it would be in the public interest if some of the Media’s personal info such as family, residence, or compensation were published; e.g. to better understand their respective bias’s or perspective. Utterly ridiculous and a testament to the subjective application of laws.”
On Monday evening, 48 hours after the story landed, Barstow caught me in the lobby of The Times. My emails to him and his editors may have assured them of the rightness of our decision, but out there in the larger world a lot of people hadn’t gotten the memo. The Post story was still ricocheting around the internet, and other media outlets were giving fresh air to the faux debate over the legality of publishing the information.
Inexplicably, and rarely to be repeated, Fox News got the law right. Its on-air legal analyst declared that “[The Times] can’t be sued and they can’t be prosecuted. I understand the Trump campaign’s frustrations, but the law is not on their side.” It would have been too much to ask that Fox lead with that thought. No one gets rich at Fox by airing stories headlined “Times Well Within the Law by Publishing Trump Tax Returns.” Fox chose instead to go with “‘Someone Broke the Law’ Sending Trump Tax Return to NY Times.” It had no proof of that, naturally—the mystery mailer, depending on who he or she was, may have been under no duty to keep the returns secret—but we were not going to call over to Fox hoping to get a correction. Life is too short.
Barstow pressed me to write something for the paper setting people straight on the law. I was reluctant. I may have been sure about our legal position, but something about being the public voice on the issue struck me as askew. While it would have been foolish for Trump to sue, “being foolish” didn’t necessarily rule out the possibility that Trump might sue. I was the lawyer throughout all of this, and I didn’t relish having some piece I wrote being held up in litigation as a waiver of the attorney-client privilege or distorted by a Trump lawyer and attached as Exhibit A to a legal complaint. I also wondered whether people would believe it coming from the guy who was defending his own legal position. To me, I told Barstow, it sounded like a job for Adam Liptak, our Supreme Court reporter. Liptak was ideally positioned. Before he became a Times journalist, he had been a Times lawyer. When he departed Times Legal to start his career in the newsroom, it was his job that I filled. He knew these issues backward and forward. More important to me, I was completely certain he would agree with the legal position I had staked out.
When Adam called me the next day, he was not particularly thrilled to have been pulled into the story. Writing about well-settled law and Supreme Court decisions from 15 years ago is not exactly a reporter’s dream assignment. His story popped up online later that day under the headline “Donald Trump Would Have Trouble Winning a Suit Over The Times’s Tax Article.” He stopped short of saying it was a complete no-brainer (“the First Amendment poses a very high barrier to any such litigation”), but he cited a First Amendment legal blog that had surveyed 11 experts, all of whom lined up, more or less, with my take. In the middle of the piece, Adam turned to Gabriel Schoenfeld, who had once called for the prosecution of The Times for publishing information about a secret surveillance program during the second Bush administration. “I strongly hope that Donald Trump sues The New York Times for publishing his tax returns,” Schoenfeld said. “Any such lawsuit—which in all likelihood would be shot down by the courts on First Amendment grounds—is likely to help further unravel the candidacy of a man who is, among other disqualifying flaws, an enemy of a free press.”
When Fox News and The New York Times agree on something, there is little left to be said that would be of interest to anyone. The Trump lawyers were never heard from again, and the discussion went back to where it should have been from the beginning: on the astonishing and strangely typed number $915,729,293 and whether the man who wanted to be the next president of the United States had managed to legally avoid paying taxes for two decades. Sue Craig continued to invite readers to send her any Trump tax returns they happened to have lying around. Someone got in touch with her in early October and said he knew how to get the returns, proposing they work together. It sounded like a setup. She passed. He disappeared. Meantime, in November, the departing commissioner of the IRS said the agency was planning to move President Trump’s tax returns to a new safe from their previous locked filing cabinet.
The legal controversy was not completely over, as it turned out. In December, former Trump campaign manager Corey Lewandowski showed up at Harvard for a retrospective forum on the campaign. He recalled how Dean Baquet had told a Harvard audience just months earlier that even though it might be a crime to publish Trump’s returns, he was willing to do it. Lewandowski now jumped into the fray offering his considered legal opinion: Baquet “should be in jail” for publishing the returns. The guy was obviously not watching enough Fox News.