Rachel Maddow made news on her show on March 14 as entered a long diatribe describing how much could be learned from Donald Trump’s tax returns before finally revealing the uninteresting content of his two-page 1040 form from 2005 in which he paid $38 million in taxes on $150 million in income. This came after much hype about the tax returns and left even her staunch defenders saying the hype was uncalled for.
Of course, Donald Trump’s response to the leak was that MSNBC broke the law – they aren’t allowed to publish people’s tax returns, according to the Detroit News. Indeed, it is, by the letter of the law, illegal for Rachel Maddow to have published this tax return. 26 U.S. Code § 7213 – Unauthorized disclosure of information, likely resulting from the Privacy Act of 1978, does clearly state the following.
“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.”
However, Adam Liptak of the New York Times pointed out that the U.S. Supreme Court had ruled previously that such laws cannot be construed to limit journalists from publishing information in the public interest. The first amendment of the Constitution protects journalists from such restrictions. In Bartnicki v. Vopper, the court separated the question of whether the journalists violated the statute from the question of whether applying the statute upon journalists violated their first amendment rights, and concluded that since they were not involved in the illegal acquisition and the matter was of public importance, that it could not constitutionally be applied to them. The same reasoning would apply in this matter as Maddow and others made Donald Trump’s tax returns a matter of public interest especially with the insinuations that he had a bunch of income from Russia and of course, because the President made political theater out of promising to release his tax returns and then reneging on the promise.
It was silly for Maddow to make a big deal out of part of a tax return that wouldn’t really go into the matter at hand, but despite her awful handling of the information, it was a matter of public interest. Her disclosure of this information was completely lawful. It may have been obtained or disclosed illegally to the media; we don’t know because it was disclosed anonymously, but the most important of public information has always been obtained or disclosed illegally. The Pentagon Papers, the Manning Leaks, the Snowden bombshell, the DNC Leaks, the Podesta Emails, the CIA manuals just leaked, Flynn’s conversations with a Russian ambassador: these are all information which powerful people did not want known and in which someone violated the law in order to shed light on some horrible things that powerful people have done and which the public has been greatly enriched by knowing.
Yet, the pattern in America today is to allege criminality of one’s political opponents. Trump is not alone in making such foolish and amoral allegations as if they were a moral argument. Michael Flynn lied about speaking with Russian diplomats about the politically charged sanctions against Russia which are commonly accepted by all sides as being retaliation for interfering in the 2016 election by hacking the DNC and John Podesta – allegations which have yet to be proven or even honestly attempted to be proven. There is no reason to suspect that Trump would want to do anything other than revoke these sanctions given their motivation. It is perfectly reasonable for Michael Flynn, who had previous contacts with these diplomats because of his public service to relay that Trump would revoke the sanctions – it only had the effect of preventing countersanctions against the United States or worse.
Yet, this technically violates the Logan Act, an 18th-century relic from the time of the unconstitutional Alien and Sedition Acts, fitting in the U.S. Code as 18 U.S. Code § 953 – Private correspondence with foreign governments.
“Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”
Yes, Flynn technically had intercourse with an agent of a foreign government to influence that foreign government to not take hostile actions against the United States. The Logan Act was a partisan act in 1798 to shame George Logan for trying to negotiate directly with France, which was actually highly successful. Of course, vicariously, those calling for Flynn to be charged under the Logan Act are trying to say that Donald Trump should not have been negotiating despite the fact that he was already elected the next President of the United States at the time. I suppose it is at least reassuring that this antique law was dredged up for its original purpose: partisanship.
Furthermore, we still have the overwhelming voice of establishment Democrats who want to charge Donald Trump with treason because of the unfounded accusation about Russia interfering in our 2016 election – which, even if true, would not involve actions by Trump himself. Of course, treason is the only crime defined in the Constitution and consists solely of waging war against the United States – which no one is accusing Trump of – or adhering to its enemies – which is the accusation – and still would not apply if Russia was our enemy. Apparently, there is a serious lack of knowledge about what constitutes an enemy legally.
Some may point to 50 U.S. Code § 2204 – Definitions which defines an enemy as the following.
“the term ‘enemy’ means any country, government, group, or person that has been engaged in hostilities, whether or not lawfully authorized, with the United States;”
First, this is a definition made after the fact which does not conform to original intent. According to the Free Dictionary‘s legal dictionary, an enemy is understood under international law primarily as a country which is at war with another. Black’s Law Dictionary defines it as narrowly, ignoring the potential expansion of meaning. The thought of expanding the definition of enemy to fit changing moods insofar as it applies to the one crime defined constitutionally is a constitutional quagmire to say the least. The United States has not formally declared a war, creating an enemy to aid and commit treason with, was in 1941 when Franklin Delano Roosevelt declared war on Japan according to Time.
Second, if we did accept the U.S. Code as binding, and still ignoring that Russia allegedly aided Trump, not the other way around, we would have to explain how informing the American citizenry of vital matters involving the election constitutes hostility. To me, if Russia was responsible, which WikiLeaks denies, that would be foreign aid, not hostility.
Today, the mainstream political scene is abound with baseless accusations of criminality from both major parties with no indication that it will stop anytime soon. These are cheap tricks and are more reminiscent of petty senate feuds of Ancient Rome than a functioning democracy. However, the childishness of the accusations is not the most frightening aspect, but rather what it can do to a society deluged with such allegations on a regular basis.
When these are mainstream arguments, mainstream thought follows as well. It no longer matters what is right, but what is the law. The Greensboro Sit-ins, a hallmark of the Civil Rights movement, were illegal. Rosa Parks sitting in the front of a bus in Montgomery, Alabama was illegal. The Stonewall Riots were illegal. The Boston Tea Party was illegal. Our nation was founded upon an illegal revolution.
Conversely, slavery was legal in this country. Segregation was legal in this country. Beating and raping your wife has been legal in this country. The Holocaust was perfectly legal in Nazi Germany.
While the law should ideally match what is moral, that very often isn’t the case. The law tells you what the powers that be say can or cannot happen – what should happen even – but it is not a measure of morality. If the discussion about the legality of these actions did not end so often with the statement that they are illegal it would be one thing – it is perfectly valid to wonder on whether an action is legal or not. At times, that distinction is vital, especially when the perpetrator is involved in writing the law. However, ending the conversation with it’s illegal is a dangerous brainwashing technique that teaches people to not question the law or the powers that be. It is outright undemocratic.
We need to recall the Milgram Experiment of 1963. The experiment tested people’s willingness to follow orders that they knew were morally wrong, morally repulsive. An authority figure ordered participants to give progressively higher voltage shocks to a staged victim (who only pretended to get the shocks). A disturbing 65 percent of participants proceeded to the highest voltage level ultimately, following orders because they were told by those in authority to do so, according to Simply Psychology.
Rather than appealing to authority to determine the acceptability of actions by people, we need to be doing the exact opposite and teaching people to think critically, especially of authority.
[Featured Image by Brendan Hoffman/Getty Images]