Jonathan Ernst / Reuters
The ongoing feud between the hosts of MSNBC’s Morning Joe and President Trump took a turn on Friday when Mika Brzezinski and Joe Scarborough published an op-ed, “Donald Trump is not well,” in the Washington Post.
In it, they wrote, “This year, top White House staff members warned that the National Enquirer was planning to publish a negative article about us unless we begged the president to have the story spiked.”
The story — ”Joe & Mika: TV Couple’s Sleazy Cheating Scandal” — was published on June 2.
Quickly, some of Trump’s toughest opponents on Twitter questioned whether laws had been broken.
While it is always possible to raise questions of potential criminal wrongdoing, too much remains unknown about the specifics of the Trump-Brzezinski-Scarborough love-hate triangle to draw many conclusions other than — even if it happened how Brzezinski and Scarborough say it did — that any prosecution likely would be an uphill fight. Experts say that, based on what we know now, there appears to be no criminal issue. At most, there are are too many unanswered questions to be able to determine whether a criminal case could be made.
The coercion and blackmail laws are similar, criminalizing when a person intentionally causes a person to do or not do something with a threat of — relevant here — exposing a secret, “whether true or false, tending to subject some person to hatred, contempt or ridicule.” The federal extortion law is basically a law against coercion by federal officials.
Harvard Law School professor Andrew Manuel Crespo, who teaches and writes in the areas of criminal law and procedure, told BuzzFeed News that many questions would need to be answered to know whether it is even possible that the actions violated any coercion, blackmail, or extortion laws.
First, he said, more context is needed regarding what the conversation actually was.
Under New York and DC law, a defendant needs to threaten the target of his blackmail or otherwise instill fear in that person that some bad consequence will follow if the demands are not met. But to understand whether or not there was such a threat being made, more would have to be known about the context of the language used and the intent of the speaker — did the alleged Trump associate seem serious, for example, or was it instead simply an offhand remark or joke?
Additionally, Crespo said, New York and DC law require that the threat be to expose “a secret” that would subject the target “to hatred, contempt, or ridicule.” However, whether the facts here constitute a secret could depend on how commonly it already was known that Scarborough and Brzezinski had been dating at a specific time. Even if a secret, there would have to be a greater understanding of how the secret was viewed — was it damaging in a sense that it could fairly be considered to cause harm to their reputations? (He noted that at least one New York court opinion suggests that threatening to expose an affair could count under that statute.)
On Friday, as the day went on, more claims about the episode came out — that, according to New York magazine sources, Jared Kushner discussed the National Enquirer story with Scarborough. All kinds of information remains unknown, including who initiated the exchange between Kushner and Scarborough, and what the context and substance of it was. (Scarborough has tweeted that he has records — but he hasn’t released them.)
Justin Dillon, a former federal prosecutor in Washington, DC, told BuzzFeed News that he didn’t think the current claims laid out a case for blackmail.
"I would call it icky horsetrading, but it is not blackmail. It's more like, ‘You scratch my back, I'll scratch yours.’ Blackmail is, ‘If you don't scratch my back, I'll stab you in the back,’" Dillon, a partner at KaiserDillon in Washington who has a white collar defense practice, said.
With respect to the federal extortion statute, Crespo noted that there would need to be a better understanding of what was asked for, because extortion generally requires that the defendant tried to extract money or something of economic value from the victim. If it was simply a private apology, for example, if would be difficult to argue how that would be sufficient to prove a violation of the law. Even if the apology were to be public, some value likely would need to be shown. If this was an attempt to gain, at most, political capital, not commercial value, that could be a much trickier case to prove.
Dillon noted another distinction — one that, based on the facts alleged by Scarborough and Brzezinski so far, led him not to see a case for extortion.
"It would be one thing if he were saying, ‘If you don't apologize to me, I will make the Enquirer run this story.’ But there's a difference between sort of refusing to intervene to prevent a bad thing from happening and affirmatively making a bad thing happen, and that is a distinction that matters under the law," Dillon said.
Shanlon Wu, a former federal prosecutor in Washington, DC, added that extortion typically involves a threat to cause some sort of harm — violence or spreading false information, for instance — which he said is different from a White House aide saying that Trump would not intervene to stop something from happening that he didn't directly control.
Beyond all of that, Crespo noted, it's not clear the extent of Trump's involvement in the conversations, so it's not clear whether Trump himself would be implicated in any potential violations of his associates.
In terms of other potential crimes, the former prosecutors saw nothing in the current allegations being made publicly leading to likely violations.
If Trump had asked for money in exchange for making the Enquirer story go away, Dillon said, that could amount to bribery, given his position as president — but nothing like that has been alleged.
If Scarborough and Brzezinski were threatened with some sort of government action if they didn't apologize to Trump or lay off criticizing him — an IRS audit or surveillance by a law enforcement agency, for instance — that would be an abuse of power, said Wu, who has a white-collar and criminal defense practice at Wu, Grohovsky & Whipple, in DC. But, again, nothing like that has been alleged here.
Based on the information made public so far, this situation seemed more like "clumsy political leverage," Wu said.
As Tribe’s regular legal sparring partner in recent months, Alan Dershowitz, wrote on Twitter, “Threatening to smear someone who smears him is not extortion.”