AMI’s be­hav­ior put it­self in crim­i­nal jeop­ardy

Woonsocket Call - - OPINION - By HARRY LITMAN Harry Litman, a Washington Post con­tribut­ing colum­nist, is a for­mer U.S. at­tor­ney and deputy as­sis­tant at­tor­ney gen­eral.

Spe­cial to The Washington Post

In the wake of Ama­zon founder Jeff Be­zos’s rev­e­la­tion that Amer­i­can Me­dia Inc. was threat­en­ing to pub­lish em­bar­rass­ing pho­to­graphs of him, com­men­ta­tors were unan­i­mous in call­ing out the Na­tional En­quirer owner’s con­duct as sleazy but less cer­tain whether it amounted to a crime.

In fact, AMI’s re­ported con­duct ap­pears to meet the el­e­ments of the fed­eral crime of extortion. More im­por­tant, it prob­a­bly lands the com­pany in boil­ing-hot wa­ter with the South­ern District of New York, the pros­e­cu­tors’ of­fice with whom AMI re­cently en­tered into a co­op­er­a­tion agree­ment to avoid prose­cu­tion for a cam­paign-fi­nance vi­o­la­tions That vi­o­la­tion en­tailed a plan worked out with the Trump cam­paign to “catch and kill” – i.e., pay for and then bury – the story of a woman who al­leged a past af­fair with Trump.

The setup to the pos­si­ble crim­i­nal charges is a fairly tan­gled tale. Af­ter pri­vate text mes­sages from Be­zos (who also owns The Washington Post) were pub­lished in the Na­tional En­quirer, Be­zos launched a pri­vate in­ves­ti­ga­tion to de­ter­mine how AMI got the ma­te­rial. Be­zos be­lieved that AMI’s tar­get­ing of him might have some con­nec­tion to AMI chief David Pecker’s well-doc­u­mented friend­ship with Don­ald Trump. The pres­i­dent has made Be­zos a spe­cial ob­ject of school­boy taunts, in­clud­ing ju­bi­lant at­tacks on The Post.

Be­zos also ap­peared to sur­mise that AMI’s ac­qui­si­tion of the com­pro­mis­ing ma­te­ri­als could bear some con­nec­tion to the Saudi gov­ern­ment, and in turn to The Post’s cov­er­age of the bru­tal mur­der of Post con­tribut­ing colum­nist Jamal Khashoggi at the Saudi Con­sulate in Is­tan­bul in Oc­to­ber. In the blog post on Medium where he re­vealed this story, Be­zos wrote that he had been ad­vised by an AMI leader that Pecker was “apoplec­tic” about the in­ves­ti­ga­tion and said that “the Saudi an­gle seems to hit a par­tic­u­larly sen­si­tive nerve.”

It was at this point that an AMI vice pres­i­dent sent a lawyer in the Be­zos camp a vivid de­scrip­tion of 10 em­bar­rass­ing pho­tos. A later email from AMI’s deputy gen­eral coun­sel de­manded a pub­lic dis­claimer from Be­zos that AMI’s cov­er­age was not “po­lit­i­cally mo­ti­vated or in­flu­enced by po­lit­i­cal forces,” on threat of pub­lish­ing the pic­tures.

Be­zos called this proposal, among other things, “black­mail.” AMI has since re­sponded that it be­lieved “fer­vently that it acted law­fully in the re­port­ing of the story of Mr. Be­zos” and it was en­gag­ing in “good faith ne­go­ti­a­tions to re­solve all mat­ters with him.”

On th­ese re­ports, some com­men­ta­tors have ques­tioned whether AMI would be sub­ject to fed­eral crim­i­nal li­a­bil­ity on the tech­ni­cal ground that it would be hard to show that the com­pany tried to ob­tain “money or prop­erty” from Be­zos, as set out un­der one well-known fed­eral extortion statute. Whether AMI in fact was de­mand­ing a form of “prop­erty” is a tricky ques­tion.

But it’s the wrong ques­tion un­der fed­eral law. In a just sys­tem of crim­i­nal law, so­cially ab­hor­rent con­duct is al­most in­vari­ably crim­i­nal. And there are a clus­ter of fed­eral statutes that po­ten­tially ap­ply to AMI’s con­duct, most no­tably 18 U.S.C.§875(d). That pro­vi­sion makes it a crime to (1) trans­mit a com­mu­ni­ca­tion in in­ter­state com­merce (an email counts) con­tain­ing (2) a “threat to in­jure” the “rep­u­ta­tion of the ad­dressee” to ex­tort some (3) “money or other thing of value.” The phrase “thing of value” has been broadly in­ter­preted in other fed­eral crim­i­nal con­texts to cover var­i­ous ben­e­fits with­out clear mone­tary value. Here, it is plain that Be­zos’ attes­ta­tion that AMI had not been po­lit­i­cally mo­ti­vated would have amounted to a thing of value to AMI (as well as be­ing a lie, ac­cord­ing to Be­zos).

It is, to say the least, a bad look for AMI that it looks to sup­press ev­i­dence of sex­ual mis­con­duct in­volv­ing the pres­i­dent but then bran­dishes such ev­i­dence to try to sup­press an in­ves­ti­ga­tion into its own con­duct.

In fact, the in­trigu­ing mys­tery of the episode is why AMI was so keen to get Be­zos to drop his in­quiry that it was will­ing to make the colos­sal blun­der of putting its crass threats in email. The ma­neu­ver might have been ill-ad­vised in any case, but it looks dis­as­trous for the com­pany given the back­drop of the re­cent non­pros­e­cu­tion agree­ment with the South­ern District of New York.

A con­di­tion of that agree­ment es­sen­tially puts AMI back on the hook for the catch-and-kill of­fense should the gov­ern­ment de­ter­mine that the com­pany has com­mit­ted “any crimes.” That pro­vi­sion is not lim­ited to fed­eral crimes. Sig­nif­i­cantly, many state extortion laws are con­sid­er­ably broader than 18 U.S.C.§875(d). Washington state’s extortion law, for ex­am­ple, which prob­a­bly ap­plies here given Ama­zon’s cor­po­rate lo­ca­tion, sweeps in any threat to com­mu­ni­cate the in­tent to pub­li­cize an as­serted fact, whether true or false, tend­ing to sub­ject any per­son to ridicule. Not much wig­gle room there. And of course, should the com­pany or its of­fi­cers be charged and con­victed on such a state charge, there is no prospect of a pres­i­den­tial par­don, which reaches only fed­eral crimes.

It thus ap­pears that Be­zos has done much more than bloody the nose of a bully. The pic­tures re­main un­pub­lished, while it is AMI that is at peril of a dou­ble dose of po­ten­tial crim­i­nal li­a­bil­ity. There’s a tabloid story worth read­ing about.

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