I’ve been spending a few hours this Fourth of July deep in the books pondering with appropriately furrowed brow the knotty constitutional question of whether a sitting president can be criminally indicted, or whether the only remedy for a sitting president’s crimes is impeachment. With luck, the product of all this brow-furrowing should be posted in the next day or two.
By way of taking a break, I unfurrowed the forehead and diverted myself by considering the essentially frivolous question of whether Mr. Trump’s cat fight with MSNBC hosts Joe Scarborough and Mika Brzezinski might – technically – constitute a crime of some sort. Supposedly, Mr. Trump, through intermediaries, told the now-married Scarborough and Brzezinski that the National Enquirer would publish a negative story about them alleging that they were unfaithful to their previous spouses unless they apologized to Mr. Trump for their negative coverage of him. According to Scarborough and Brzezinski, they were told that, if an apology were forthcoming, the Enquirer story could be stopped.
A few minutes noodling around on Westlaw produced the conclusion that, yes, in theory, this sequence of events might constitute a violation of one or more federal criminal statutes. For example, 18 USC 875(d) states:
Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.
Scarborough and Brzezinski claim to have texts and phone records from Trump aides containing the threats that might satisfy the requirement of a communication in interstate commerce. If S&B’s account of their contents is accurate, those texts and calls would appear to contain threats to injure the TV hosts’ reputation. See United States v. Coss, 677 F.3d 278, 286 (6th Cir. ) (describing the “classic extortion scenario where individual X demands money from individual Y in exchange for individual X’s silence or agreement to destroy evidence of individual Y’s marital infidelity”).
The highest hurdle would lie in proving that Mr. Trump sought to use the threat to “extort … any … thing of value.” However, in federal criminal law, the term “thing of value” is not limited to money or tangible property. It routinely embraces all sorts of intangibles, including “romantic pursuits and sex-related consideration,” United States v. Petrovic, 701 F.3d 849, 858 (8th Cir. 2012), or the release of prisoners, United States v. White, 654 Fed.Appx. 956 (11th Cir. 2016). See also the list in United States v. Girard, 601 F.2d 69 (2d Cir. 1979). Courts focus heavily on whether the defendant placed value on whatever was demanded.
So, yeah, maybe there could be some technical legal liability. And given the current fevered environment, I was unsurprised to find that other great minds had beaten me to this notion. These include Jason Le Miere at Newsweek, and Dan Friedman and David Corn at Mother Jones, who also consider possible liability under state law.
The Mother Jones piece even features Harvard professors Lawrence Tribe and Alan Dershowitz in their increasingly familiar posture of Trump scourge vs. Trump apologist, with Professor Tribe tweeting supportively and Dershowitz poo-pooing the idea that the Morning Joe kerfluffle might be criminal.
For my part, I think both of these eminent gentlemen are departing regrettably far from the ideal of searching, even-handed, meticulous, scholarly, legal analysis that is, or ought to be, the foundation of their authority in a national discussion of this sort.
The truth is that, considered in isolation, the Trump-Morning Joe catfight could, maybe, and depending on facts as yet undisclosed, just barely be shoe-horned into the confines of a federal extortion statute or perhaps some state analog. But it would be a YUGE stretch. And no sensible prosecutor would touch it with a barge pole, even if the defendant weren’t the President of the United States. In this respect, the race to categorize the business as criminal is a pretty good example of Professor Dershowitz’s expressed concern that Trump opponents are far too ready to encourage elastic interpretations of the criminal law to ensnare the object of their dislike.
That said, if one considers this celebrity cat fight, not in isolation, but as part of what even a fair-minded observer might conclude is a disturbingly unpresidential pattern of aggressive hostility to the press, then it might become one piece of an argument for impeachment, not on the ground of criminal misconduct, but of failure to perform a president’s foremost responsibility to support and defend the principles of American constitutionalism.
Consideration of that possibility will have to wait for another day.