In the wake of Amazon founder Jeff Bezosâ€™s revelation that American Media Inc. was threatening to publish embarrassing photographs of him, commentators were unanimous in calling out the National Enquirer ownerâ€™s conduct as sleazy but less certain whether it amounted to a crime.
In fact, AMIâ€™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 prosecutorsâ€™ 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 â€ścatch and killâ€ť - 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 AMIâ€™s targeting of him might have some connection to AMI chief David Peckerâ€™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 AMIâ€™s acquisition of the compromising materials could bear some connection to the Saudi government, and in turn to The Postâ€™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 â€śapoplecticâ€ť about the investigation and said that â€śthe Saudi angle seems to hit a particularly sensitive nerve.â€ť
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 AMIâ€™s deputy general counsel demanded a public disclaimer from Bezos that AMIâ€™s coverage was not â€śpolitically motivated or influenced by political forces,â€ť on threat of publishing the pictures.
Bezos called this proposal, among other things, â€śblackmail.â€ť AMI has since responded that it believed â€śfervently that it acted lawfully in the reporting of the story of Mr. Bezosâ€ť and it was engaging in â€śgood 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 â€śmoney or propertyâ€ť from Bezos, as set out under one well-known federal extortion statute. Whether AMI in fact was demanding a form of â€śpropertyâ€ť is a tricky question.
But itâ€™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 AMIâ€™s conduct.
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.
Harry Litman, a Washington Post contributing columnist, is a former U.S. attorney and deputy assistant attorney general.