Professor Turley is out with his latest column, about the Trump’s trial in Manhattan scheduled to start tomorrow:
The NY Post is out with my column on the start of the Trump trial tomorrow in New York. Cicero once said, “The more laws, the less justice.” This week, New York judges and lawyers appear eager to prove that the same is true for cases against Donald Trump. https://t.co/ZLecqrjpnA
— Jonathan Turley (@JonathanTurley) April 14, 2024
As you might recall, the basic theory is that when Trump paid Stormy Daniels to keep her mouth shut about any potential affair, this was not merely a legal expense, but actually a campaign expense and thus, somehow illegal. Turley’s column is worth reading in full but this particular part leapt out at me:
Lawyers have been scouring the civil and criminal codes for any basis to sue or prosecute Trump before the upcoming 2024 election. This week will highlight the damage done to New York’s legal system because of this unhinged crusade. They’ve charged him with everything short of ripping a label off a mattress.
Turley is right to say that there is a veritable lawfare jihad being waged against Trump. And it all reminded me of something I just haven’t anyone pay an attention to: There is a distinct possibility that Trump is actually a victim of a crime, in all of this. To be clear, I am not saying he definitely is one. But you don't have to have proof that a crime was committed for law enforcement to investigate that possibility, and law enforcement has shown absolutely zero interest in determining whether or not he is a victim of a crime, when they should have at least looked into it.
And to explain why I think this should have been investigated, I will have to do a patented Aaron Walker Deep Dive into the law.
So how could Trump be the victim of a crime?
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Let’s say, for instance, that Trump said to Stormy Daniels: ‘I will pay you $130,000’ not to tell people we had an affair’ and Daniels accepted that offer. What do you call that? Well, that’s just paying hush money, and nothing more.
But let’s turn that around, and imagine instead Stormy Daniels said this: ‘I will not tell anyone we had an affair, for $130,000’ and Donald Trump agrees and pays the money. What do you call that? Well, usually you call that extortion or blackmail.
For instance, federal law (18 U.S.C. § 875) covers a number of types of interstate threats that fall into the category of extortion. Most of the statute deals with threats of various types of physical harm, like kidnapping and threats to injury, but § 875 (d) also says:
(d) 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.
Meanwhile, New York State law deals with extortion primarily as a method of larceny (theft) and thus focuses on the criminal obtaining property by extortion and defines the act as follows:
A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:
(i) Cause physical injury to some person in the future; or
(ii) Cause damage to property; or
(iii) Engage in other conduct constituting a crime; or
(iv) Accuse some person of a crime or cause criminal charges or removal proceedings to be instituted against him or her; or
(v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or
(vi) Cause a strike, boycott or other collective labor group action injurious to some person's business; except that such a threat shall not be deemed extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act; or
(vii) Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or
(viii) Use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or
(ix) Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.
Penal Law § 155.05 (2) (e).
The state statute is a good place to start because we don’t have to worry about some elements related to federal jurisdiction. So, what are we talking about under New York Law? Well, for instance, subsection (i) deals with a scenario of ‘give me $2,000 or I will break your son’s legs.’ Subsection (ii) deals with ‘give me $2,000 or I will burn your house down.’ Subsection (iii) deals with ‘give me $2,000 or I will tell everyone you stole a from poor box at the church’ or even ‘give me $2,000 or I will get you deported.’ Finally, we get subsection (iv), which deals with ‘give me $2,000, or I tell your wife you are having an affair.’
Or, you know, ‘give me $130,000, or I will tell the whole world we slept together.’
That’s the kind of thing they are talking about. Here’s that language, isolating out the other myriad ways that extortion can occur under New York law:
A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will … Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule;
As I have said before, in law ‘women’ are often ‘men’ and this is one of those times, so all the ‘he’s’ should really be read as ‘he or she.’ So, let’s build a hypothetical off of a famously silly (classic) movie. Imagine if Jessica Rabbit threatened to claim she and R.K. Maroon had an affair and Mr. Maroon paid her $130,000 to keep quiet about it (and imagine this is all happening in New York, today), then Mrs. Rabbit would be guilty of extortion.
After all, that is a threat to publicize an asserted fact (the affair) that would tend to put Maroon into hatred or contempt.
You will also notice that truth is not a defense to extortion, because the problem is that the criminal is using the threat of exposure to get something out of him or her. Indeed, the threat to make such an accusation is usually more powerful when it is true, because there is often evidence. There might be pictures taken by Detective Eddie Valiant of the two playing ‘pattycake,’ for instance, or maybe Mrs. Maroon found suspicious (cartoon) red hairs on Mr. Maroon’s clothes. A man might be more likely to blow off a threat to accuse him of having an affair when he is innocent, because he would feel confident that there is no collaborating evidence. In that case (where he blows it off), under New York law, that would be attempted larceny by extortion.
And with all of that in mind, let’s turn back to that federal law, 18 U.S.C. § 875. Just so you don’t have to scroll up, here’s that language, again:
(d) 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.
Let’s break down the meaning of the words used in this law. First, the criminal has to be seeking ‘money or other thing of value.’ That would seem to include any form of property, but it can also include intangible things. Here’s what the Second Circuit, which has jurisdiction over any New York case, has said about that:
Like the District Judge, we are impressed by Congress' repeated use of the phrase ‘thing of value’ in section 641 and its predecessors. These words are found in so many criminal statutes throughout the United States that they have in a sense become words of art. The word ‘thing’ notwithstanding, the phrase is generally construed to cover intangibles as well as tangibles. For example, amusement is held to be a thing of value under gambling statutes. … Sexual intercourse, or the promise of sexual intercourse, is a thing of value under a bribery statute. … So also are a promise to reinstate an employee, … and an agreement not to run in a primary election. … The testimony of a witness is a thing of value under 18 U.S.C. § 876, which prohibits threats made through the mails with the intent to extort money or any other ‘thing of value.’
United States v. Girard, 601 F. 2d 69 (2nd Cir. 1979) (citations removed). Really, I tend to think almost anything you would be willing to threaten or harm another to obtain, would almost automatically be a ‘thing of value’ because your willingness to do those acts to get it suggests that you place value in it.
The requirement that the person ‘transmits in interstate or foreign commerce’ the unlawful threat is a bit contentious. I have seen some courts say effectively that pretty much every phone call or Internet transmission is transmitted in interstate commerce (if not foreign commerce) in the sense that even if you are calling down your next-door neighbor, the phone call might actually be routed out of state on the way to the next house. Others take a narrower view. I have also seen a Second Circuit case that said that a threat to kill Yasar Arafathead that was broadcast on television that could be seen in three states was transmitted in interstate commerce, even though at the time both the terrorist (Arafat) and the guy threatening him were in the same state, because the transmission went out of state. Chances are if Jessica Rabbit is threatening to expose R.K. Maroon’s affair if he doesn’t pay her money, she is using some form of communication that is private—either in person, by phone, by email or private message on social media. But at the same time, if Rabbit calls Maroon to carry out her extortion, while she is in New York and he is in New Jersey, that would easily satisfy the interstate commerce requirement in the federal law.
And next, the statute requires it to be a threat ‘to injure the property or reputation of the addressee.’ Threatening to accuse a person of an affair is a classic example a threat to injure a person’s reputation. Of course there are more types of threats covered by the statute, but that is sufficient.
The point I am getting at is that there is a thin line between merely paying hush money—which unquestionably happened between Trump and Daniels—and extortion. I am not saying that Daniels—or her lawyer—definitely committed extortion. But I am saying it that the border between legal and illegal activity on this subject a minefield and it is very hard to avoid almost accidentally committing extortion.
For instance, imagine this scenario—and I can’t stress enough that I am only imagining hypotheticals without factual foundation. Donald Trump—through his lawyer—says in essence, ‘we would like you to sign this non-disclosure agreement for $100,000’ and Daniels says ‘I won’t do it for less than $130,000.’ Well, that can be seen as her basically threatening to tell people they had an affair unless they cough up that additional $30,000. If she is successful in getting that money that would be larceny by extortion under New York State law. And if her negotiations are transmitted in interstate commerce, that would violate federal law, too.
But it is more insidious than that. As I just mentioned, intangibles like amusement, sex, promises to reinstate an employee, a promise not to run in a primary election or a promise not to testify is a ‘thing of value’ in federal criminal law. Well, contracts often have many promises of intangible value in them. I have never seen the contract between Daniels and Trump, but I wouldn’t be surprised if it contained a provision selecting the choice of law and venue for any disputes. So, again speaking entirely hypothetically, imagine if Trump might have proposed a contract that said that if there was a dispute that the case had to be heard in Florida under Florida law, and Daniels (or her lawyer) came back saying ‘we won’t do it unless it can be decided in New York State, under New York law.’ Just like my hypothetical a minute ago, that could be read as a threat to reveal the affair unless Trump gives up that ‘thing of value’—the choice of law and choice of venue. And depending on how the contact is written, there could be hundreds of similar ‘things of value’ in the contract other than just the raw amount paid to her. Simply put, if she attempted to negotiate any part of the agreement, that is arguably federal extortion.
Of course, that is less likely to be interpreted as extortion or attempted extortion under New York state law, because New York requires that the person use extortion to obtain ‘property.’ That seems unlikely to cover intangibles like the federal statute—although you never know how courts might interpret a law. But here’s the other thing to consider. What if one or more of the parties were not in New York when this was occurring? I’m not going to attempt to cover every jurisdiction in the United States, but I know of at least one state off the top of my head that uses the term "thing of value" in its extortion statute, and it is worth looking at Florida, because even then Trump was starting to spend a lot of time in Florida. Here’s what their extortion statute says:
(1) Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
So, there, Florida law will call it extortion if you either try to get ‘money or any pecuniary advantage whatsoever,’ or just use it to make person ‘do any act or refrain from doing any act against his or her will’ which would cover many of those intangibles covered by federal law.
So, negotiating this kind of contract is a minefield. The only way to really be safe is if they followed a non-negotiation approach. That would be Trump would propose a contract and Daniels’ team only said yes or no. And if they said no, they would not indicate that they would do it if they sweetened the deal, or they risk being on the hook for state or federal extortion charges. So, it would have to be something like this.
Trump team: We offer you $100,000 to keep quiet.
Daniels team: No.
Trump team: How much do you want to stay silent?
Daniels team: We aren’t going to say that or even if there is a price we will accept.
Now, I want to be clear in saying I have no idea how the contract was drafted and eventually signed. So for all I know, the Daniels team did exactly what I am saying, and negotiated that legal minefield perfectly. But I know something about human nature and that is a very unnatural way to work out a contract: To just say no over and over again, and not indicate what you actually want. The temptation to actually tell the other side what your want is powerful, and hard to resist.
And there is something else to keep in mind. There is also a certain part of our culture that glorifies extortion. Like you might see a woman in a movie who has an evil boss who won’t give her a raise and she says, ‘give me that raise, or I show your wife video from the Christmas party where you were making a pass at me.’ And then he folds and a number of people in the audience say ‘you go, girl!’ or something like that. Now, I’m not saying that the behavior of characters in movies has to be perfect, moral and legal, but I do think that a lot of people fail to recognize that they are technically seeing criminal extortion and if they get caught doing it, they might be in prison.
And it is worth noting that it is also very possible for a person’s lawyer to commit extortion, without the client knowing—thus the lawyer could be guilty of extortion without implicating the client.
So, again, I have no information about the exchange between Trump, his lawyers, and Daniels and any lawyers she might’ve hired, when forming this contract. For all I know, her team was fastidiously careful in avoiding any statements that could interpreted as extortion.
But if I am in law enforcement, I am going to look very close at that question. Was Trump spontaneously paying Daniels hush money, or did Daniels or her team give Trump the impression that he had to pay that hush money or she would claim they had an affair? Did Trump just buy her silence, or did she also commit extortion?
And that is why I say it is possible that Trump was actually the victim of a crime.
And while I have never seen evidence that Daniels or anyone connected to her committed extortion, I also have never seen any evidence that any of the myriad law enforcement officers involved in these issues have even looked into the issue. That is the travesty at the heart of this case: They try to find any loophole they can to drag Trump into court, while failing to look into the possibility that he is a victim.
