AMI’s behavior put itself in criminal jeopardy
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.