D.C. Circuit Upholds 5-Year Sentence for Leaker of Trump’s and Others’ Tax Returns

From U.S. v. Littlejohn, decided today by D.C. Circuit Judge Justin Walker, joined by Judges Neomi Rao and Judith Rogers:

In 2017, Charles Littlejohn obtained a job as a consultant to the Internal Revenue Service so that he could steal and leak the tax returns of President Donald Trump. He says he “felt that the American people should have the opportunity to see the tax returns of the sitting president before they decided on how they were going to vote.” … Two years into his elaborate scheme, in 2019, Littlejohn gave President Trump’s tax return and return information to a reporter for the New York Times…. [J[ust weeks before the 2020 presidential election, the New York Times began publishing articles based on what Littlejohn had stolen.

That was, however, only one of Littlejohn’s grand plans. He says he “also felt that taxpayers as a whole deserved to know just how easy it was for the wealthiest among us to avoid paying into our system.” So he used his “skills to systematically violate the privacy of thousands of innocent people” by stealing the tax returns and return information of about 600 entities and about 7,600 of the wealthiest Americans. He then leaked what he stole to ProPublica, which used data regarding at least 152 of his victims in about 50 articles.

As a result of Littlejohn’s crime, his victims lost business. They were disparaged countless times. And their families were physically threatened. See A 199–201 (letters on behalf of victims who described “great distress” to “me and my family”; “reputational damage”; “economic impact”; “patently false assertions about the tax payer’s tax compliance”; personal “threat[s]” to “our family”; “disparage[ment] countless times”; “lost business”; “reputational damage”; putting “our family’s safety” in “jeopard[y]”; “very real threats”; “mental, emotional, and reputational consequences”).

To this day, ProPublica is sitting on the private, as-yet-unpublished data of other taxpayers stolen by Littlejohn. But those taxpayers continue to fear that ProPublica will publish their data in the future….

In 2023, the Government and Littlejohn notified the district court that he intended to plead guilty to one count of disclosing without authorization tax returns and return information in violation of 26 U.S.C. § 7213(a)(1).

A day before Littlejohn’s plea hearing, the district court held an off-the-record meeting in chambers with counsel for the Government and Littlejohn. The court said it was “perplexed” by the Government’s decision not to charge Littlejohn with “multiple charges carrying a much higher possible sentence.” Littlejohn’s counsel did not object to anything about the meeting.

After Littlejohn pleaded guilty, the Government filed a memorandum arguing for the maximum sentence—five years in prison. In response, the district court emailed counsel for the Government and Littlejohn, again without objection, to request that they prepare to address whether it is “per se unreasonable to impose a sentence of a maximum term, outside the guidelines, to a defendant that pled guilty, cooperated with the Government, and accepts responsibility.” The court said it had “not made a sentencing decision and will of course hear all argument on the appropriate sentence, including the appropriate impact of Mr. Littlejohn’s cooperation and acceptance of responsibility.”

In 2024, at the start of Littlejohn’s sentencing hearing, the district court told him, “I know that this may well be the worst morning of your life or one of them. And I want you to know that I know that and I’m sympathetic to it.” The court added:

I wish more than you can possibly know that we were meeting under different circumstances, because I have read the 29 letters from your friends and family. And they uniformly speak to a person of immense intelligence, deep caring, and unwavering loyalty. And I think anyone who has read those letters knows that to call you a friend is a privilege.

The court then continued to address Littlejohn directly and said, “I want you to know that I have studied and thought and struggled deeply about your sentence. And there have been very few days since I took your plea that I have not thought about your sentence in some way.” The court circled back to its belief that Littlejohn had “repeatedly answered the call to help others” and added that his “actions were guided, however misguided the thought was, by a genuine belief of doing the right thing.” But the court also said that, “whatever the motivation,” Littlejohn had “target[ed] the sitting President of the United States,” which “was an attack on our constitutional democracy.” So the court intended to impose a sentence “with a firmness of purpose that such an attack demands.”

The court imposed the statutory maximum five-year sentence (which was an upward departure from the sentence recommended by the Sentencing Guidelines, which was “one year to one-and-a-half years”). The D.C. Circuit held the sentence was reasonable; some excerpts of the analysis:

Littlejohn has not shown that the district court predetermined his sentence. Rather, the record reflects that the court approached its decision with an “open mind.” At the sentencing hearing, the court expressed sympathy for Littlejohn and discussed “the 29 letters from [his] friends and family” that “uniformly [spoke] to a person of immense intelligence, deep caring, and unwavering loyalty.” The court later said it had “studied and thought and struggled deeply about [Littlejohn’s] sentence,” even revealing that there had “been very few days since [his] plea that [the court had] not thought about [his] sentence in some way.” And throughout the hearing, the court showed it “was listening to what [the parties] were saying,” by asking probing questions that would have been unnecessary if the sentence had been predetermined.

It is true that the court expressed “strong feelings” about Littlejohn’s crime and likely arrived at the sentencing hearing with a “preliminary idea” about an appropriate punishment. But that is neither unusual nor untoward, especially when the court’s words and actions indicated a “mind[ ] open to new facts, new arguments, and new choices.” …

[Littlejohn] notes that the district court repeatedly pressed the Government about why it brought only one felony charge against him when far more charges were possible. But that is hardly evidence of a predetermined sentence. When the district court asked about the charging decision before the plea hearing, the district court was likely weighing the reasons for and against accepting the plea bargain (which is a judicial responsibility). Then, when the court asked about it again at sentencing, the court was likely giving the Government an “opportunity to make it clear to the public” why Littlejohn didn’t face more charges.

Littlejohn argues that the district court based his “sentence on its mistaken belief that his crime was politically motivated, ‘targeted’ a sitting President, ‘attacked’ constitutional democracy, and was intended to cause harm to thousands of individuals whose tax records he disclosed to investigative reporters.” But those four findings were not clearly erroneous.

First, his crime was politically motivated, at least in part because one of his motives was to change tax policy by (in Littlejohn’s words) showing “just how easy it was for the wealthiest among us to avoid paying into our system.” Second, his crime was an attack on a sitting president because he wanted to inform voters about (in his words) “the tax returns of the sitting president before they decided on how they were going to vote.” Third, his crime was an attack on our constitutional democracy because his goal was to influence an election through illegal activity and because (in his words) his crime “undermined the fragile faith that we place in the impartiality of our government institutions.” And fourth, his crime was intended to harm thousands of taxpayers because (again in his words) he “systematically violate[d] the privacy of thousands of innocent people.” …

The district court did not abuse its discretion when it understood the statutorily mandated sentencing factors in 18 U.S.C. § 3553(a) to require a five-year sentence…. Here, the offense was far more serious than most unlawful disclosures of tax records. Littlejohn “target[ed] the office of the President of the United States,” which meant he “target[ed] democracy.” Plus, he launched “an intolerable attack on the personal lives of thousands of Americans” on a scale “unparalleled in the IRS’s history.” And “because Mr. Littlejohn unlawfully disclosed the tax return information of thousands more individuals” than the 152 victims whose information has already been published, more “individuals’ information could be published in the future. In other words, the scope of the harm is not necessarily done or even known.” …

Littlejohn [also] “made a series of calculated decisions, over two to three years, to willfully violate the law. Most stunning, Mr. Littlejohn has admitted that he sought to work as an IRS consultant with the hope and expectation of accessing and disclosing then President Trump’s tax information.” It was therefore reasonable for the district court to conclude that only the statutory maximum would sufficiently “deter government officials and contractors from making those same deliberate decisions to take the law into their own hands.” …

William C. Winn (DoJ) argued on behalf of the government.