In saner times, the announcement of a plea deal between The National Enquirer and federal prosecutors stemming from the tabloid’s supposed campaign finance violations would elicit healthy skepticism, rather than cheers, at America’s media institutions. Lost in the fury of progressive — and some conservative — resistance to President Trump is the fact that the Enquirer did not commit a crime: Its conduct is protected by the First Amendment.
The long-understood dishonesty and unfairness that characterize the federal criminal justice system, which in normal times furnish fodder for the Fourth Estate’s skepticism, now are the subject of breathless page-one reporting of prosecutorial triumphs. The coverage of the National Enquirer case is a perfect example.
It is now known that David J. Pecker, chairman and CEO of American Media, publisher of the National Enquirer and other supermarket tabloids, was a longtime friend of Trump. As such, during the 2016 election, Pecker, in concert with Trump’s personal attorney Michael D. Cohen, engaged in the practice known as “catch and kill,” in which the tabloid would buy stories on an exclusive basis from women who credibly claimed to have had affairs with Trump. Their undisclosed purpose was to bury, not publish, the scandalous stories.
Federal prosecutors in Manhattan deemed these payoffs campaign finance law violations, since they exceeded federal campaign contribution limits and their alleged purpose was to protect candidate Trump’s electoral prospects, rather than the alternative motive of hiding the infidelity from Trump’s wife. Both Cohen and Pecker, when caught and offered a plea bargain, purported to buy into the prosecutors’ interpretation of the purpose of the scheme. Cohen pleaded guilty and was sentenced to three years imprisonment for this and other confessed Trump-related crimes, while Pecker and his company entered into a favorable nonprosecution deal, as the Times put it, “in exchange for its cooperation.”
Such deals are notorious among prosecutors and criminal defense lawyers, and even among the federal judges who routinely accept and bless them from the bench. It’s an open secret that those who are by these means “turned” into government witnesses adopt prosecutors’ favored scenarios as part of what Alan Dershowitz has aptly named agreements to “sing and compose.” It is the composing aspect of the system, which should (but does not) bother all ethical lawyers and judges, that seems to elude the reporters and editorialists covering these events, who doubtless would be bothered by the tactic if the targets were more sympathetic. It is understandable why lawyers like Cohen and publishers like Pecker engage in such deals, even if they have to align their stories with interpretations of the law that turn them into confessed criminals (Cohen) or violators spared only by virtue of their cooperation (Pecker).
With regard to the payoffs of the two women whose stories were “caught and killed” by the Enquirer, the press was in theory endowed with an enormous degree of protection by the First Amendment’s free-press guarantees to publish, or refrain from publishing, these stories, irrespective of the tabloid’s reasons for doing so. Cohen, who might well have violated the criminal law in other transactions he undertook for his client, likewise was protected by the Constitution’s solicitousness for First Amendment rights in the Enquirer transaction.
Yet these actions were jointly characterized as criminal campaign finance violations by both sides pursuing their respective interests. It is not readily apparent why the establishment press has seemingly bought into these prosecutorial theories that, under other circumstances, it would attack as First Amendment incursions. My sad assessment is that, in the Age of Trump, our news organizations have fallen into that ancient hypocrisy that dictates malleable principles in the quest to support allies and oppose enemies. Theories of criminality that would once trigger the opposition of civil libertarians and the news media are now uncritically accepted when attributed to Trump and his minions.
I keep on a bookshelf in back of my desk a dog-eared copy of Robert Bolt’s 1960 play “A Man for All Seasons,” dramatizing the refusal of Sir Thomas More to put his personal imprimatur on the legal interpretations demanded by King Henry VIII. More, who was soon afterward sentenced to death for his refusal to indulge the king, explained his recalcitrance to William Roper, who, unlike More, was sufficiently agreeable so as to gain the king’s favor and hence the reward of high office. Laws, More explained, are like trees “planted thick” in the forest. It is foolish to chop down those trees in order to chase and corner the devil, for suddenly the devil can turn around and become the hunter rather than the hunted. Suddenly those protective trees are not available for the erstwhile hunter to hide behind. “Yes, I’d give the devil benefit of law, for my own safety’s sake,” More explains.
I fear that when Trump finally waltzes off the public stage, we will be left with the long-term consequences of our own foolish destruction of the legal institutions — the trees of our constitutional forest, so to speak — designed to protect democracy, liberty, and, in the process, all of us. Future generations’ liberties will suffer from our blind and reckless pursuit of our devil. Only then will history lament that we should have given Trump and his cohorts “benefit of law, for [our] own safety’s sake.”
Harvey Silverglate, a criminal defense and civil liberties lawyer and writer, is the author, most recently, of “Three Felonies a Day: How the Feds Target the Innocent.”