In publishing evidence that Donald Trump claimed losses so big in 1995 that he could have skipped paying income taxes for eighteen years, the New York Times establishes the credibility of its evidence with fascinating bit of font-ernalia, explained by Trump’s former tax preparer Jack Mitnick:
Mr. Mitnick, 80, now semiretired and living in Florida, said that while he no longer had access to Mr. Trump’s original returns, the documents appeared to be authentic copies of portions of Mr. Trump’s 1995 tax returns. Mr. Mitnick said the signature on the tax preparer line of the New Jersey tax form was his, and he readily explained an obvious anomaly in the way especially large numbers appeared on the New York tax document.
A flaw in the tax software program he used at the time prevented him from being able to print a nine-figure loss on Mr. Trump’s New York return, he said. So, for example, the loss of “-915,729,293” on Line 18 of the return printed out as “5,729,293.” As a result, Mr. Mitnick recalled, he had to use his typewriter to manually add the “-91,” thus explaining why the first two digits appeared to be in a different font and were slightly misaligned from the following seven digits.
“This is legit,” he said, stabbing a finger into the document [David Barstow, Susanne Craig, Russ Buettner, and Megan Twohey, “Donald Trump Tax Records Show He Could Have Avoided Taxes for Nearly Two Decades, the Times Found,” New York Times, 2016.10.01].
The Republican nominee has already threatened to sue the New York Times for printing “illegally obtained” documents. But that’s “just words”—instructively for us bloggers and other public watchdogs, Trump has no legal grounds for suing journalists for publishing documents they obtain from sources:
Even my journalism students in my entry-level media law class know that the First Amendment provides an absolute legal shield to journalists who are sued for publishing lawfully obtained documents that are a matter of public concern.
The U.S. Supreme Court’s rulings in Pentagon Papers, Florida Star v. B.J.F., and the tongue-twisting Bartnicki v. Vopper created a First Amendment protection for journalists who publish documents that are confidential by law – so long as the journalist is a passive recipient of the documents. The journalist cannot be prosecuted for criminal violations or sued under civil privacy laws even if the leaker broke civil or criminal laws by obtaining or leaking the documents [Susan E. Seager, “Donald Trump Can’t Shut Down New York Times Tax Leak Showing He Lost Nearly $1 Billion in 1995,” Daily Beast, 2016.10.02].
Journalists can still face charges for breaking into a locked desk and stealing papers (though what good reporter would ever do such a thing?) But if someone hands us documents, and those documents shed light on matters of public interest, we need not fuss about the provenance of those papers; we need to get our scanners and keyboards humming and inform the public.