Incitement to felony?

[Okrahoma]

Here’s a tweet:

Nicholas Kristof

“But if you’re in IRS and have a certain president’s tax return that you’d like to leak, my address is: NYT, 620 Eighth Ave, NY NY 10018.”

Now, that incitement to felony. Publishing a “leaked” return is a federal crime punishable by up to 5 years in prison. He just established the case for the prosecution.

“It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.”

… and

“It shall be unlawful for any person to whom a return or return information (as defined in section 6103(b)) is disclosed pursuant to the provisions of section 6103(e)(1)(D)(iii) willfully to disclose such return or return information in any manner not provided by law. Any violation of this paragraph shall be a felony punishable by a fine in any amount not to exceed $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.”

Is he trying to be “martyred” for the cause?

[Okrahoma]

Here are the relevant laws in NYS:

Article 100 | NYS Penal Law | Criminal Solicitation | NY Law

[dolphinboy]

Let’s say that an IRS leaker sends him Trump’s tax return and he releases it to the press. You can bet he is going to be arrested and investigated. What deal is finally made who knows. The leaker will likely be found out in the process.

[Procrustus]

@Okrahoma

Is he trying to be “martyred” for the cause?

I think I’d be willing to spend 5 years in prison if it meant Trump gets hauled out of the White House before he did any more damage.

But, that’s just because I love my country.

[running_coach]

@Okrahoma

Here are the relevant laws in NYS:

Article 100 | NYS Penal Law | Criminal Solicitation | NY Law

If it’s a federal crime, why are you quoting state law?

[Okrahoma]

@running_coach

If it’s a federal crime, why are you quoting state law?

I did quote federal law in the OP. This is additional. I am not sure if the state criminal soliciting laws apply to soliciting for a federal crime.

[Bricker]

@running_coach

If it’s a federal crime, why are you quoting state law?

The state law criminalizes soliciting another person to engage in conduct constituting a felony. The underlying felony can be federal.

@Okrahoma

I did quote federal law in the OP. This is additional. I am not sure if the state criminal soliciting laws apply to soliciting for a federal crime.

They do. Cites on request.

[Okrahoma]

So, Kristof is using Twitter for criminal purposes. Complaint submitted.

[watchwolf49]

The hang up here using Section 6103b is that it only applies to the peoples listed in Section 6103a:

(a) General rule - Returns and return information shall be confidential, and except as authorized by this title—

(1) no officer or employee of the United States,
(2) no officer or employee of any State, any local law enforcement agency receiving information under subsection (i)(1)(C) or (7)(A), any local child support enforcement agency, or any local agency administering a program listed in subsection (l)(7)(D) who has or had access to returns or return information under this section or section 6104(c), and
(3) no other person (or officer or employee thereof) who has or had access to returns or return information under subsection (e)(1)(D)(iii), subsection (k)(10), paragraph (6), (10), (12), (16), (19), (20), or (21) of subsection (l), paragraph (2) or (4)(B) of subsection (m), or subsection (n),

shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise or under the provisions of this section. For purposes of this subsection, the term “officer or employee” includes a former officer or employee.

Now we apply the very high “imminent lawless action” standards … and clearly this tweet is protected speech … IRS employees are perfectly aware they can send tax returns to the press, it’s unlikely this specific tweet will cause them to do so immediately …

The New York Times breaks no law just simply asking to get a copy of The Donald’s return … and if they get a copy then they are free to publish it … if they broke no law obtaining it, and here just asking is lawful … even if the receipt of the return was a direct consequence of asking for it … as We the People still must prove it was likely to happen …

Think Thomas Becket …

[PoppaSan]

@Procrustus

I think I’d be willing to spend 5 years in prison if it meant Trump gets hauled out of the White House before he did any more damage.

But, that’s just because I love my country.

Explain how whatever was on tax returns from before taking office would get Trump “hauled out of the White House” if possible. It was established when his old return was leaked that he possibly did not pay any taxes for almost 20 years. Any federal issues that would be imprison-able he could pardon himself for. Impeachment for crimes before he took office? Don’t know if that can be done.

[Bricker]

@Okrahoma

So, Kristof is using Twitter for criminal purposes. Complaint submitted.

This is the kind of conduct that does in fact constitute a crime, but is unlikely to result in an indictment, because prosecutorial discretion will likely fall towards not pursuing.

[Bricker]

@watchwolf49

Now we apply the very high “imminent lawless action” standards … and clearly this tweet is protected speech … IRS employees are perfectly aware they can send tax returns to the press, it’s unlikely this specific tweet will cause them to do so immediately …

The New York Times breaks no law just simply asking to get a copy of The Donald’s return … and if they get a copy then they are free to publish it … if they broke no law obtaining it, and here just asking is lawful … even if the receipt of the return was a direct consequence of asking for it … as We the People still must prove it was likely to happen …

Think Thomas Becket …

Sorry. While I believe it’s unlikely in the extreme that a prosecutor would pursue this charge, I disagree with your analysis.

US v Williams, 553 US 285 (2008) held in pertinent part:

Offers to provide or requests to obtain unlawful material, whether as part of a commercial exchange or not, are similarly undeserving of First Amendment protection. It would be an odd constitutional principle that permitted the government to prohibit offers to sell illegal drugs, but not offers to give them away for free.

As to the immediacy requirement, he’s asking for a person at the IRS with access to the material in question to send him that material. (“But if you’re in IRS and have a certain president’s tax return that you’d like to leak, my address is.”) A specific entreaty for a specific illegal action that can be immediately undertaken is black-letter solicitation. And note that 26 USC § 6103(a)(3) applies to any “other person,” not merely an IRS employee.

That said, if the paper got the info, I agree they can publish notwithstanding § 6103(a)(3). See Bartnicki v. Vopper, 532 US 514 (2001):

These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. That question is both novel and narrow. Despite the fact that federal law has prohibited such disclosures since 1934, this is the first time that we have confronted such an issue.
.
.
.
Nevertheless, having considered the interests at stake, we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment.

[Okrahoma]

@Bricker

This is the kind of conduct that does in fact constitute a crime, but is unlikely to result in an indictment, because prosecutorial discretion will likely fall towards not pursuing.

The complaint was submitted to Twitter. They banned people for much lesser offences.

[Bricker]

@Okrahoma

The complaint was submitted to Twitter. They banned people for much lesser offences.

I will be surprised if Twitter takes any action here.

[Procrustus]

@PoppaSan

Explain how whatever was on tax returns from before taking office would get Trump “hauled out of the White House” if possible. It was established when his old return was leaked that he possibly did not pay any taxes for almost 20 years. Any federal issues that would be imprison-able he could pardon himself for. Impeachment for crimes before he took office? Don’t know if that can be done.

Well, I did say “if.” The interesting thing would be Russian contacts. If it’s ugly enough, he would resign.

[watchwolf49]

@Bricker

Sorry. While I believe it’s unlikely in the extreme that a prosecutor would pursue this charge, I disagree with your analysis … [snip]

Thank you for this clarification … so what you’re saying is that it is a crime to ask …

I didn’t go through all the cited provisions in § 6103(a)(3) … I just assumed they were all otherwise lawful access to the returns …

[Bricker]

@watchwolf49

Thank you for this clarification … so what you’re saying is that it is a crime to ask …

Yup. To borrow the wording of the statute, someone who “solicits, requests, commands, importunes or otherwise attempts to cause…” another person to commit a felony is guilty of solicitation.

[watchwolf49]

@Bricker

Yup. To borrow the wording of the statute, someone who “solicits, requests, commands, importunes or otherwise attempts to cause…” another person to commit a felony is guilty of solicitation.

So imminence is a red herring?

@Bricker

I will be surprised if Twitter takes any action here.

Then they’re committing the crime of solicitation?

[watchwolf49]

uh oh … from § 6103(g):

(g) Disclosure to President and certain other persons

(1) In general - Upon written request by the President, signed by him personally, the Secretary shall furnish to the President, or to such employee or employees of the White House Office as the President may designate by name in such request, a return or return information with respect to any taxpayer named in such request. Any such request shall state—

(A) the name and address of the taxpayer whose return or return information is to be disclosed,
(B) the kind of return or return information which is to be disclosed,
(C) the taxable period or periods covered by such return or return information, and
(D) the specific reason why the inspection or disclosure is requested.

The Donald has my tax returns in hand?

[Bricker]

@watchwolf49

So imminence is a red herring?

In a sense, yes. The imminence element exists, but when a specific crime is solicited, and it can be accomplished by someone who receives the solicitation and has the immediate capability to act, it’s met.

Then they’re committing the crime of solicitation?

Twitter? No, no more than AT&T is engaging in conspiracy when you and I plan to rob a bank by texting the plans to each other over our AT&T phones.