Harsh punishments for leakers undermine public-interest journalism

Seth Stern

Director of Advocacy

Caitlin Vogus Headshot

Deputy Director of Advocacy

A crowd of protestors stand before a statue and building, with one holding an orange sign reading, "Pres. Trump: Release your tax returns! What are you hiding?"

Before former IRS contractor Charles Littlejohn leaked then-President Donald Trump’s tax returns to The New York Times, Trump was the only president since the Ford administration to refuse to release his returns. Above, protesters calling for Trump financial disclosures at a 2017 rally in Minnesota. "Rally to demand Donald Trump release his tax returns" by Fibonacci Blue is licensed under CC BY 2.0.

Former IRS contractor Charles Littlejohn received the maximum sentence of five years’ imprisonment on Monday, after pleading guilty to leaking Donald Trump’s returns to The New York Times. Littlejohn also leaked a tranche of ultrawealthy Americans’ tax documents to ProPublica.

It’s sadly ironic — and reflects poorly on our legal system — that Littlejohn is being harshly punished for exposing billionaire tax evasion while billionaire tax evaders themselves continue to be afforded leniency by the judiciary. Littlejohn pleaded guilty and expected to be punished. But throwing the book at him — despite the government’s initial estimate that he should face just eight to 14 months’ imprisonment based on federal sentencing guidelines — will chill future whistleblowers from revealing corruption and wrongdoing.

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Littlejohn’s disclosures enabled ProPublica to report, among other things, the frequency with which billionaires pay taxes at a lower rate than other Americans — when they even pay taxes at all. The reporting brought global attention to the myriad of ways ultrawealthy Americans exploit tax loopholes. It started an important national discussion and prompted calls for reform by numerous elected officials, culminating in President Biden’s proposal of a minimum tax for the kinds of ultrarich Americans whose records Littlejohn leaked to ProPublica.

The New York Times’ reporting on Trump’s tax returns disclosed by Littlejohn revealed that the self-proclaimed billionaire had paid no federal income tax in 10 of the previous 15 years because he reported losing more money than he made. As a presidential candidate, Trump had refused to release his returns, despite other presidential candidates doing so voluntarily for decades. The Times’ reporting not only cast doubt on Trump’s carefully cultivated image as a business genius but also raised concern over the incentives for him to use the presidency to reduce his debts.

But none of that mattered to Judge Ana Reyes, who at sentencing called Littlejohn’s disclosure of Trump’s filings “an attack on our constitutional democracy.” Reyes also likened Littlejohn’s case to the Jan. 6 attacks on the Capitol, and said: “It cannot be open season on our elected officials — it just can’t.”

Leakers who act out of conscience can further democracy

Whistleblowers who provide information to the press may act outside the law. But sources who inform the public about government and private wrongdoing out of moral belief aren’t akin to the violent insurrectionists who tried to overthrow the government — many of whom have not yet faced justice or been punished far less for actually assaulting people, by the way.

Sources who act out of conscience to leak information to the press and expose wrongdoing are furthering our democracy, not attacking it. Had whistleblower Daniel Ellsberg not leaked the Pentagon Papers to the press, the American public may never have learned of the American government’s lies regarding the Vietnam War. Ellsberg, who was called the “most dangerous man in America” at the time of the leaks in 1971, was eulogized as a national hero when he died last year.

Whistleblowers like Ellsberg often resort to leaking documents to the press because they believe, based on their experience and observations, that working through official channels will not affect change and that government agencies will cover up, rather than investigate, malfeasance. Their sincere hope is that an informed public will be better able to more effectively pressure those in power to rectify abuses than they can themselves. They’re willing to take enormous personal risks to accomplish that goal.

Littlejohn, too, took an enormous personal risk and is now facing the consequences. But Reyes should have considered his motivations when determining what punishment fits the crime. There’s no credible allegation that he acted for personal gain, out of spite, or for any other reason besides his conscience compelling him to expose abuses of our system of taxation. Even murder defendants are entitled to consideration of their motives at sentencing. Whistleblowers certainly should be as well.

Balancing privacy against public value

It’s true that Littlejohn’s leaks undermined the government’s legitimate role in protecting financial privacy, which has important public value. But when sentencing Littlejohn, Reyes also should have balanced this harm against the unique public importance of the documents that Littlejohn provided to the press.

For years, advocates have raised alarms over the ways in which our tax system advantages the rich. At the time of Littlejohn’s actions, news outlets were reporting that newly enacted tax cuts were heightening the problem. But explaining the tax code to people is one thing — showing them concrete examples, as ProPublica was able to do following Littlejohn’s disclosures, is quite another.

Similarly, since Trump first won the Republican nomination in 2016, people had raised concern over how little the public knew about the finances and potential conflicts of interest of the wealthiest candidate ever nominated by a major political party. But Trump had consistently managed to evade transparency. Littlejohn’s disclosure ensured that the press could inform the American electorate.

Similar to the Panama Papers, which shed light on how offshore accounts were used to hide corruption and crime, Littlejohn’s whistleblowing helped the American public understand how elites and even public officials were evading taxes. And like many whistleblowers, Littlejohn acted as a last resort when multiple other attempts to hold these individuals accountable had already failed.

Rather than consider any of these nuances, Reyes imposed the harshest penalty she could on Littlejohn. Reyes may be worried about open season by leakers against elected officials. Maybe instead we all should be concerned about open season in the courts against whistleblowers.

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