Opinion

Opinion | Nancy Gertner

Why some ‘secrets’ leaked while Trump’s tax returns haven’t

epa05819518 US President Donald J. Trump leads a listening session with health insurance company CEO's in the Roosevelt Room of the White House, Washington, DC, USA 27 February 2017. EPA/AUDE GUERRUCCI/ POOL

AUDE GUERRUCCI/EPA

President Trump.

President Trump frequently complains about Washington leaks. But what he is really concerned about is that these leaks are not random. He believes that they are being deployed to harm his administration. (Of course, he had no problem with WikiLeaks’ leak of e-mails from the Democratic National Committee during the campaign. “I love WikiLeaks,” he said.) But the pattern of leaks is uneven and, in one area, that inconsistent pattern may well redound to Trump’s advantage: Despite all the information that has come out of this leaky administration, his tax returns remain confidential (except for a single year reportedly leaked by one of Trump’s former wives).

Among the leaks that have incensed the president is the New York Times report about phone records that showed members of Trump’s presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials before the election. Another was the Washington Post report about former national security adviser Michael Flynn’s FBI interview concerning whether he had spoken to the Russian ambassador about US sanctions prior to the election, and whether his statements contradicted a transcript of an intercepted call which could expose Flynn to criminal charges.

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This could help explain why the president is content to see his tax returns remain under wraps, even as the media pressure mounts. New York Times columnist David Leonhardt reported that Trump looked to Russia because many American banks refused to lend money to “Trump’s debt-soaked company,” and quoted Donald Trump Jr.’s 2008 statement that “Russians make up a pretty disproportionate cross-section of a lot of our assets.” If Trump’s foreign policy decisions can be linked to his Russian ties, it could be more than a conflict of interest. Depending on the context — what he has said to whom, what he has done or directed others to do, and with what intent — it could be an impeachable offense.

Leaks are obviously not new. They reflect a critical tension between the open and transparent government a democracy requires and the government’s need for some secrecy. That may well be why leaks are not necessarily illegal unless the law specifically provides for criminal or civil penalties.

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Leaks occurred in previous administrations. Edward Snowden’s leaks disclosed a secret mass surveillance program. The leaker known as “Deep Throat,” an FBI official, provided information on the Watergate scandal that led to President Nixon’s resignation. According to Liza Goitein of the Brennan Center for Justice, officials often leak in order to cast the administration in a positive light.

Nor is the IRS immune. In 2015, thieves hacked into a tax database, obtaining as many as 330,000 accounts and attempting to break into another 280,000. Many IRS officials — reportedly tens of thousands — have access to Trump’s tax information. (A master computer would show a summary of everyone’s return to which diverse employees have access.)

One explanation for why the tax returns have not surfaced is the penalty for wrongful disclosure — a fine and imprisonment of up to five years. Moreover, the IRS has an internal tracking system to identify unauthorized browsing by its employees. Tax returns, which contain extraordinarily personal information, should be protected. But none of this fully accounts for the silence. Penalties for the disclosure of tax returns are not as strict as the penalties for disclosure of “national defense information,” or the disclosure of material that would be “prejudicial to the safety of the United States,” which are felonies carrying imprisonment up to 10 years.

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There is even a safe haven for IRS whistleblowers. The law provides that a whistleblower may disclose returns to certain congressional committees without fear of prosecution if the whistleblower believes that the information may relate to evidence of possible “misconduct, maladministration, or taxpayer abuse.” None of the leakers in recent memory have had that kind of protection. Congressional committees that deal with tax policy may also request tax information, as Democratic congressman Bill Pascrell of New Jersey has done, to no avail. Why then have they not been leaked? Why is there no Snowden in the IRS?

Maybe it’s because privacy protections are somehow working here, even when they failed elsewhere in the government. Maybe the penalties are deterring would be IRS leakers, even when penalties for other disclosures are more severe. Or maybe there is no there there, although if that were so, Trump would have disclosed the returns. So Trump is right. The leaky pattern is uneven but, in this case, works to his benefit, not the public’s.

Nancy Gertner, a retired federal judge, is a professor at Harvard Law School.
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