Lawyers representing Republican presidential nominee Donald Trump sent a letter to The New York Times threatening a lawsuit after the paper published several pages of Trump’s 1995 tax returns.
The Manhattan mogul tapped Kasowitz, Benson, Torres & Friedman, a leading litigation firm whom he’s lavished with praise in the past, to lead his response.
Marc Kasowitz, a veteran litigator, told the Times he would execute “prompt initiation of appropriate legal action” should they publish Trump’s returns. He said that Trump had not authorized the release of his tax returns and their publication would therefore be unlawful.
The firm has represented Trump in various capacities since 2001, according to The American Lawyer. The firm was retained to restructure $1.3 billion in bondholder debt after his Atlantic City casinos shuttered, and again in a defamation suit brought against the ghostwriter of “Trump Nation: The Art of Being the Donald,” for suggesting his net-worth was less than $1 billion.
Despite the posturing from from Kasowitz, the Times itself is probably on strong legal ground. At the level of generality, any law that preemptively restricts speech, known as a prior restraint, is considered presumptively unconstitutional by the courts. Therefore, any law forbidding the publication of factual statements or documents, like a tax return, is almost certainly unconstitutional.
The U.S. Supreme Court has also spoken definitively in connection to this issue. In Bartnicki v. Vopper, the Court found that the First Amendment protects the disclosure of illegally intercepted communications. Justice John Paul Stevens, writing for the Court, reasoned that matters of general public interest prevail when balanced against a privacy interest.
Though the Times is on strong legal footing, it is possible someone broke the law along the way. The Times indicated that they received three pages of the ’95 return by mail with a return address at Trump Tower. If those documents were obtained and released without Trump’s consent by an aggrieved employee, relative, or federal official, it is possible litigation could ensure.