It made a big, big stir yesterday when the Manhattan US Attorney’s announced yesterday that the parent company of The National Enquirer, AMI, had entered a non-prosecution agreement with prosecutors. AMI agreed that the Daniels and McDougal payments were meant to protect Trump’s campaign. I’m less impressed than others that this dramatically raises the legal stakes for Trump: AMI and Cohen vs Trump rather than Cohen vs Trump. This will never be a conventional trial, whether it’s in a courtroom or in the court of public opinion. More interesting to me is what else AMI revealed.
It was an open secret (in the nature of things) during the campaign that the Enquirer was all but a part of the Trump campaign. Yes, it routinely attacked Hillary. It also attacked most of the President Trump’s Republican challengers in the primaries. If it’s just that David Pecker was pals with Trump and ran pro-Trump stories, I’m not sure that’s a legal problem. That’s not really the intended purpose of the 1st Amendment. But it’s well within its scope. The 1st Amendment doesn’t require that you practice quality journalism or even legitimate journalism.
There are some people who think aggressive advocacy should count, under certain circumstances, as campaign contributions. But that’s a terrible idea. And, in any case, there’s zero chance the current Supreme Court, which thinks spending is speech wouldn’t think speech is speech. Where it gets more complicated is when money is involved or AMI was working in concert with the campaign or its agents (Michael Cohen) or more specifically if things drift into blackmail or extortion territory – what I’ve alluded to in terms of Cohen weaponizing the tools he used to protect Trump against Trump’s enemies.
This whole thing seems like a very open question to me.