Last year, we learned that American Media Inc., the company that publishes the National Enquirer, and its CEO, David Pecker, acted as a shield protecting Donald Trump against disclosure of his extramarital activities. In a nonprosecution agreement with the U.S. Attorney for the Southern District of New York, AMI admitted that Pecker met with Michael Cohen in August 2015 and offered to help suppress stories about Trump’s infidelity. Thereafter, AMI was involved in the hush money payments to both Stormy Daniels and former Playboy model Karen McDougal, in the latter case using the “catch and kill” technique of buying the rights to her story and then burying it.
It now appears that the media firm may also have acted as a sword slashing at Trump’s enemies. The company recently targeted Jeff Bezos—world’s richest man, CEO of Amazon, owner of the Washington Post, and frequent target of Trump’s ire—by exposing his extramarital affair with Lauren Sanchez. Bezos responded by launching a private investigation of AMI’s methods and possible political motivations. (Did they come after him at the behest of Trump or perhaps Trump family pals, the Saudis?) Then, in an effort both brazen and bizarre, AMI sought to quash Bezos’ investigation by threatening to publish a series of intimate photos of the CEO and Sanchez.
Bezos refused to yield. Instead, he published a blog post that included emails from two AMI officials, chief content officer Dylan Howard and deputy general counsel Jon Fine, in which, incredibly, they described the photos in lurid detail and expressly threatened publication unless Bezos both released any legal claims he might have against AMI and issued a public statement that he had “no knowledge or basis for suggesting that AMI’s coverage [of Bezos’ affair] was politically motivated or influenced by political forces.”
Bloomberg is reporting that federal prosecutors have begun looking into whether AMI’s behavior with respect to Bezos may constitute a violation of the aforementioned nonprosecution agreement. There are a number of legal questions at play here. Did AMI’s threats amount to a crime? If so, who could be prosecuted? Why was AMI so desperate to silence allegations that it was acting politically? How, if at all, does this squalid business fit into the large picture of Trump scandals and investigations?
First, AMI’s emails pretty plainly satisfy the elements of federal extortion, 18 U.S.C. §875(d), which prohibits transmitting a communication in interstate commerce “containing any threat to injure the … reputation of the addressee” in order to extort “money or other thing of value.” The emails are in interstate commerce. The threat was to Bezos’ reputation. AMI might argue that it wasn’t demanding a “thing of value,” but under federal law, that’s almost certainly wrong.
The term thing of value extends to intangibles and even to things without any transferrable monetary worth, like cessation of a criminal prosecution, continuation of a sexual relationship, or even an apology. The demand that Bezos refrain from attributing political motive to AMI could itself be a “thing of value.” But even if that were not the case, a release of potential legal claims plainly is a thing of economic value. So it appears that AMI, as a corporate entity; Fine, its lawyer; and anyone within the corporation who approved Fine’s demands could potentially be charged with felony extortion.
Second, by its terms, AMI’s nonprosecution agreement with the Southern District of New York remains effective only so long as AMI commits no further crimes. An attempt to extort Bezos would almost certainly violate the agreement.
At one level, that doesn’t matter very much. The only entity the SDNY promised not to prosecute was AMI, the company, and only for election-law violations committed in 2016. The agreement placed no limitation on prosecutions of individual persons for anything (including the 2016 hush money payments), and it never limited the government from prosecuting AMI or anyone else for future crimes. So regardless of the terms of the nonprosecution agreement, it does not bar prosecution of AMI and its employees for the alleged Bezos extortion.
The behavior Bezos describes in his blog post does, though, create a mare’s-nest of issues regarding the portions of the nonprosecution agreement in which AMI promised to cooperate fully with the government.
The agreement says that all information obtained during such cooperation can be used “for any purpose,” which presumably includes prosecution of AMI or its employees if the new charge were not related to 2016 election crimes. However, there would certainly have been at least an implicit understanding that the SDNY would not prosecute the company or its people based on material divulged during honest cooperation. Moreover, so long as the agreement remained in effect, there might be legal obstacles to using such disclosures, including Federal Rule of Evidence 410, relating to statements made in plea discussions.
But under the terms of the agreement, commission of a new crime by AMI allows the government to use anything learned during AMI’s cooperation to prosecute the corporation, whether for hush money campaign finance violations or anything else. The question of whether such material could be used to prosecute corporate officers like Pecker or lower-ranking employees who talked to prosecutors as part of the cooperation effort is trickier and would depend largely on the particular understanding between each officer or employee and the government.
If this sounds complicated, it is. And that’s one of the primary takeaways of the Bezos revelation: The Southern District of New York originally made the calculation that the information AMI could provide was of more value to the public interest than pursuing a legally tricky prosecution. Now they have to re-evaluate. Not only is extortion a serious crime, but if the SDNY wants to preserve its own credibility, it must respond sternly to a flagrant violation of a nonprosecution agreement that some might argue was too generous in the first place. If SDNY does void the agreement and start prosecuting the company and its people, that would at the very least complicate ongoing efforts to secure information and testimony from AMI personnel about other crimes, possibly including other instances in which the company helped protect Trump.
The fact that AMI would take the huge risk of trying to blackmail the richest man on the planet to stop his investigation of its reporting and possible political motives is superficially baffling. Those actions endangered AMI’s nonprosecution agreement, not to speak of opening the company to new, more serious charges. Moreover, the firm tried to intimidate a guy who could buy AMI with the change under his couch, and tried to do so after revealing Bezos’ affair and his colorful texts, thus squandering whatever leverage they might have enjoyed from the photos.
That said, the National Enquirer’s business model depends on maintaining its image as an independent member of the family of legitimate media outlets. Among other advantages, that posture makes it easier to defend, on First Amendment grounds, the libel suits its brand of journalism is apt to spawn. In the Trump hush money affair, AMI was already exposed as a political actor paying to suppress, not publish, news on behalf of a preferred candidate—hardly a constitutionally protected journalistic activity. If Bezos could show that its publication activities were also driven by partisan affiliation, or worse, money or influence from a murderous foreign government like Saudi Arabia, the damage would be multiplied. Perhaps a chance to prevent such revelations was thought worth the risk.
Finally, it’s too early to know exactly how this arrestingly vulgar scandal fits in the never-ending metastasis of Trump investigations. The Daily Beast reported last week that Bezos’ investigators have looked into the Amazon CEO’s mistress’ brother, Michael Sanchez, who is both a vocal Trump supporter and sometime business associate of Trump-world denizens Roger Stone and Carter Page. In an interview with the Washington Post, Michael Sanchez denied having anything to do with the National Enquirer’s reporting and alleged that “he was told by multiple people at American Media, the Enquirer’s parent company, that the Enquirer set out to do ‘a takedown to make Trump happy.’ ” AMI, for its part, responded by saying that it “emphatically rejects any assertion that its reporting was instigated, dictated or influenced in any manner by external forces, political or otherwise. End of speculation—and story.” At this point, all we can say for certain is that this is not the end of the story, for AMI and possibly for Donald Trump.
Donald Trump Jeff Bezos Media
Frank Bowman is a law professor at the University of Missouri–Columbia. You can read more of his work on impeachment on his blog Impeachable Offenses?