Tax, legal experts say leaker of Trump tax returns could face prison time

"This is every bit as bad as what Nixon did," said tax attorney Jay Mann, noting the privacy section of the Internal Revenue Code, Section 6103, was enacted after the Nixon administration abused tax return information of individuals on the White House "enemies list."

Published: October 1, 2020 6:20pm

Updated: October 2, 2020 11:20pm

Tax and legal experts say the leaker or leakers who took President Trump's personal tax returns and gave them to The New York Times, committed a felony punishable by prison.

Joseph diGenova, a former U.S. Attorney for the District of Columbia who has advised Trump on some legal matters, told Just the News that the leaking was "definitely" a crime that could be liable for both criminal and civil legal actions.

"If you obtain tax information, first of all, if you obtain it from the government — that's 100% a crime if it was an IRS worker," said diGenova. "If it's an accountant or a lawyer who gets it as part of their duties and discloses it, that's also a crime. It's a different type of crime, it could be fraud, or it could be all sorts of different types of crimes. Obviously it's theft of the property and then the illegal disclosure." 

diGenova said if the leaking was done by a lawyer, "it's grounds for disbarment," and if it was an accountant, "they can lose their license to practice as a CPA."

"But they also have defrauded their clients, so that's a criminal offense, and when you release your client's confidential information, you defraud your client," diGenova said. "And then there's all sorts of other types of crimes you could use, but it's mail and wire fraud."

diGenova also said a Justice Department investigation to discern who leaked the returns —including whether it was a government official in the state of New York, Trump's longtime former residence — could be initiated by the Southern District of New York or the Brooklyn U.S. Attorney of the Eastern District of New York, "both of whom are extremely unfriendly to Trump."

Because of this likely anti-Trump bias, diGenova recommended that Attorney General William Barr's office in Washington, D.C. oversee any investigation out of the DOJ's tax division. He also said a separate investigation by the Department of Treasury — which oversees the Internal Revenue Service — could determine whether the documents were leaked by a Treasury worker.

Spokeswomen reached by Just the News at the Department of Justice and the Treasury Department both declined to comment on this matter at this time.

Rep. Kevin Brady (R-Texas), the top Republican on the U.S. House Ways and Means Committee — which oversees tax collection — issued a public statement on Monday.

"While many critics question the article's accuracy, equally troubling is the prospect that a felony crime was committed by releasing the private tax return information of an individual — in this case the president's," Brady said. "To ensure every American is protected against the illegal release of their tax returns for political reasons, I am calling for an investigation of the source and to prosecute if the law was broken."

Julio Gonzalez, founder of the Palm Beach, Fla.-based tax advisory firm Engineered Tax Services, told the "Just the News AM" television show in a video interview that "there's no doubt there was a felony committed" with a penalty of up to 20 years in jail.

"I'm sure we're going to figure out who committed that felony, you only have so many people that have access to that," said Gonzalez, who has advised Trump and congressional Republicans on tax legislation. 

Jay Mann, a prominent tax attorney in New York, told Just the News that the privacy section of the Internal Revenue Code, Section 6103, was enacted after abuses by the Nixon administration of tax return information of individuals on the "enemies list."

"This is every bit as bad as what Nixon did," Mann said. "There were instances in the Obama IRS of the tax returns of conservative tax exempt organizations being leaked so outsiders could see the identity of donors to those groups. Those leaks were clearly by IRS employees."

In its reporting releasing the president's returns, the New York Times' Dean Baquet issued a statement saying: "Some will raise questions about publishing the president's personal tax information. But the Supreme Court has repeatedly ruled that the First Amendment allows the press to publish newsworthy information that was legally obtained by reporters even when those in power fight to keep it hidden. That powerful principle of the First Amendment applies here."

Richard Roth, founder and managing member of the Roth Law Firm in New York, likewise said if the leaker obtained the returns legally, "then there is nothing wrong with delivering them to the press."

"Remember, the press runs on legally obtained information," noted Roth. "If it is in the hands of someone other than POTUS or the government, then it is fair game. Privileges and confidentiality is premised, under the law, on the right to privacy concept. Once they are released, that privilege is waived and the documents are fair game."

However, "if they were illegally released by the IRS, the New York State Attorney General's Office or another authority, then there may be some illegality in releasing the information Roth said,. While, in that instance, they could be prosecuted, the dilemma Trump has is that, in prosecuting that person, the truth will be revealed."

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