New York, New York – July 31, 2019 – New York attorney Sean O’Loughlin announced today that release of President Trump’s New York State individual tax returns by New York State under the Trust Act to the House of Representatives without a warrant supported by probable cause that a crime has been committed or without permission from President Trump would most likely be a violation of the Fourth Amendment’s guarantee against unreasonable search and seizure.
In a recent United States Supreme Court decision – Timothy Ivory Carpenter v. United States (Supreme Court 2018) –
the Supreme Court specifically stated that “We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.”
In said case, the FBI had obtained court orders directing the cell phone carriers of a burglary suspect to turn over cell site location information of the burglary suspect’s cell phone for four months during the time period when the alleged burglaries took place. The Court stated in it’s opinion that “[t]he Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment…” In applying it’s reasoning the Court specifically stated as follows: “[b]ut this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy.”
The Court distinguished this case – Carpenter v. United States – from United States v. Miller (Supreme Court 1976) in which the Court reasoned as follows: “[w]hile investigating Miller for tax evasion, the Government subpoenaed his banks, seeking several months of canceled checks, deposit slips, and monthly statements. The Court rejected a Fourth Amendment challenge to the records collection. For one, Miller could ‘assert neither ownership nor possession’ of the documents; they were “business records of the banks… For another, the nature of those records confirmed Miller’s limited expectation of privacy, because the checks were ‘not confidential communications but negotiable instruments to be used in commercial transactions,’ and the bank statements contained information ‘exposed to [bank] employees in the ordinary course of business…’ The Court thus concluded that Miller had ‘take[n] the risk, in revealing his affairs to another, that the information [would] be conveyed by that person to the Government.”
Since Tax Returns contain private information which everyone, including public officials, should be entitled to a reasonable expectation of privacy, I conclude that seizure of President Trump’s individual New York State tax returns by the House of Representatives without a warrant or permission from President Trump would most likely be a violation of President Trump’s Fourth Amendment right to be free from unreasonable search and seizure. I strongly disagree with all negative political messages and tactics from all sides. The above analysis is not about politics but rather the above analysis is about preserving our Constitution.