Four Months To Eternity In Prison If Trump Tax Data Leaker Caught

There is a good chance that the New York Times

NYT
story on Trump’s tax returns required some criminal activity by somebody or some somebodies in order to make it happen. This is about what the specific crime might be, but bear with a bit of background. Whoever it is if caught and prosecuted might get a pretty easy or very harsh sentence, but let us first consider if there is a crime and then what the crime might be.

Maybe It Is An Elaborate Ruse

I have one theory of how it might have happened without there being a crime involved.

The theory goes that the document dump in whatever form it took was arranged by the Trump campaign to prompt NYT to do the sort of series they are doing expecting that the reaction on net would be positive for Trump. Pulling that off successfully would be a pretty slick ruse de guerre – not at the level of Operation Fortitude, which convinced the Nazis that all those troops storming ashore on Normandy were part of a feint, but still pretty good.

Were it not for my chaotic good alignment, I would have derived a great deal of satisfaction from working on putting the package together. I would have started with the actual returns and then altered them in ways that would fit the likely preferred narrative of the Times even better, but which will cause great embarrassment when the actual returns are revealed. Look it wasn’t $750, it was $750,000.

Or A Practical Joking Tax Preparer

That is a slightly crazy theory. Another more plausible theory that might not be criminal is that somebody like me just made the returns up starting with all publicly available information and then filling in the blanks with assumptions. I once did something like that on Warren Buffet’s information to test a theory. I would need confederates in order to pass the product off as plausible to NYT reporters. I suspect that they have had to deal with things like this as they have been doing their investigation.

If they got the actual goods, though without complicity from the President, there is likely a crime involved. But what is the crime?

What Is The Crime?

During the interminable IRS scandal, a common statement by the scandal mongers was that Lois Lerner should go to prison. She was kind of the face of IRS malice toward the Tea Partiers and she had invoked her right against self-incrimination when called to testify before a House Committee. So lock her up. Only nobody seemed to ask what specifically she could be locked up for.

Except me. Here is my piece – Exactly What Kind Of A Criminal Might Lois Lerner Be?. I’ve noticed that people don’t seem to remember the IRS Scandal, which I call Teapartygate that well anymore. Our President did mention it when questioned about the Times revelation he talked about how badly the IRS treats him –

The IRS does not treat me well. They treat me like the Tea Party like they treated the Tea Party. The don’t treat me well. They treat me very badly.

Now let’s run the New York Times source through the same gauntlet and see what the charges might be. We will call the source Dale Discloser (DD) who prefers they/them pronouns.

On The Record

Peter Goldberger, among other things, defends people accused of tax crimes. He even had a hand in an appeal for the late Irwin Schiff, the brains behind much of the modern tax protester movement.

The privacy of return information is strictly protected by IRC (26 USC) § 6103. It is a federal felony publishable by up to 5 years’ imprisonment and a fine of up to 250,000 to make a disclosure prohibited by that section. IRC § 7213. (The $5000 fine mentioned in § 7213 is superseded by 18 USC § 3571.)

If the information was obtained without authorization or in excess of authorization from a government computer, then it also violated federal computer privacy law, 18 USC § 1030(a)(2)(B), which is a ten-year felony. The NYT “editor’s note” says that their source could face substantial legal consequences if revealed, but that the paper did not acquire their copies “illegally.”

That latter statement just means that the Times did not steal them or bribe anyone to get them (26 USC § 7213(a)(4)), nor provide other assistance to the leaker in obtaining them, 18 USC § 2(a), and that they claim a First Amendment right to receive and publish illegally obtained documents of public interest (which is correct).

Given the nature and scope of the documents that would contain the published information, it would seem that the leaker/source would have to be an IRS employee with access to the file (attorney, revenue agent, or IT person), in which case you have a courageous public-spirited leaker on the order of Daniel Ellsberg, Chelsea Manning or Edward Snowden; or perhaps it was someone with access to the Mazars’ file (accountant, attorney, paralegal, or IT person) who breached professional confidentiality to make the disclosure (and potentially committed a crime, presumably under a state privacy law of some sort, and perhaps in violation of the federal computer privacy law, 18 USC § 1030(a)(2)(B)).

Lowering The Drama A Bit

It is common when reporting about potential federal crimes to throw out five years for this and ten years for that, which will tend to be the statutory maximum and of course here you probably have something like 20 counts of each to come up with a maximum sentence from here to eternity. That is not how sentencing actually works.

There are guidelines that consider in the words of Arlo Guthrie:

this-piece-of-paper’s-got-47-words-37-sentences-58-words-we-wanna-Know-details-of-the-crime-time-of-the-crime-and-any-other-kind-of-thing-You-gotta-say-pertaining-to-and-about-the-crime-

There is also the matter of your criminal history. It is a pretty complicated formula that ends up with a guideline sentencing range. Judges have to be prepared to justify going outside the range. With that in mind I asked Mr. Goldberger what a likely guideline sentence would be if DD had led an otherwise exemplary life:

Guidelines look like 4-10 months, with option of probation if there is also a condition of home confinement or halfway house. USSG 2H3.1 (“privacy & eavesdropping”) and 5A (penalty table), at Level 9.

BUT – The judge might think that a guideline variance was called for in the light of such a notorious egregious breach of confidentiality that would allow DD to become a celebrity with a book and movie deal after a few months at Club Fed. Given the number of counts, the statutory maximum would be, as we say, a number.

Off The Record

I have another expert source on federal tax crimes who prefers to be off-the- record. They wrote me:

If someone at the IRS turned over return information in IRS files, that person could be prosecuted under 26 USC 7213. If the information as disclosed by a preparer, they could be prosecuted under 26 USC 7216. If it was disclosed by someone else (e.g., someone in the law firm representing Trump and the Trump organizations, then I don’t know of a specifically targeted tax crime that may apply. I suspect that there could be state law crimes or punishments (e.g., disciplinary proceedings) that could be instituted for disclosure of confidential client information.

The Wisdom Of The Crowd

I also reached out to #TaxTwitter, which has finally gotten off being all Paycheck Protection all the time as tax pros are released from their unpaid term as loan processors.

In Summary

It will probably be a while before we are at cocktail parties or conferences or the like, but if you are at one and the subject of the New York Times disclosures comes up and people start getting into the Trump crimes that might be inferred, you can segue to “But what about the federal crimes the leaker might have committed?” By having actual statutes in mind, you can sound very knowledgeable. Here is what we identified:

26 U.S. Code § 6103 – Confidentiality and disclosure of returns and return information

26 U.S. Code § 7213 – Unauthorized disclosure of information

18 U.S. Code § 1030.Fraud and related activity in connection with computers

18 U.S. Code § 2.Principals (This is what the NYT people have to worry about)

26 U.S. Code § 7216.Disclosure or use of information by preparers of returns

There But For Fortune

I’m not sure I agree with Mr. Goldberger that the leak was likely from a government source. I am also less of a fan of Manning and Snowden than he is, although you have to admire their courage regardless of what you think of the merits of their action. I do know that if I were at the accounting firm, I would be having nightmares.

I hope it does not turn out to be the accounting firm as a matter of professional courtesy.