The Federal Election Commission has never exhibited much appetite for fighting over press-exemption issues, and the Department of Justice would be similarly disinclined to pursue criminal cases in which “journalistic” purpose, or lack thereof, is litigated. But the protection of the exemption is only available to news organizations engaged in a legitimate press function—or, in the FEC’s words, acting as a “press entity” would. And it is specifically intended as protection for the publication of new stories or commentaries: The law refers to the activity of “distributing,” or “covering or carrying,” newsworthy publications. AMI, however, was not publishing; the facts may reveal its intention to collect the materials solely for the purpose of keeping them from public view. In doing so, moreover, it may have been collaborating on this scheme directly with agents of the candidate.
If so, AMI was not acting as a press entity, performing a legitimate press function, in a “catch and kill” operation. If it did not, then the sums paid to Ms. McDougal would constitute a contribution to the campaign. It would also be an illegal contribution on two levels: It would be a prohibited corporate in-kind, and the campaign would not have reported it. All that having been said, the chances of AMI facing serious liability should not be overstated. The relevant precedent to guide regulators is scarce, there are significant constitutional issues to contend with in any investigation involving the press (even the tabloid press), and the regulators’ weakness of will in dealing with issues of this nature—indeed, any controversial issues—is well-established.
The campaign-finance laws do not, however, exhaust the tape’s role in exacerbating Trump’s legal troubles. It does not help Trump overall in his legal defense for it to have been publicly revealed, yet again, that he lies routinely as it suits him. Not that the tapes are the first evidence of it, but prosecutors are confronted time and again with the fact of the president’s chronic dishonesty. Even the story within the story—the question of whether Trump directed payment for the McDougal material with untraceable cash—adds to the grim appraisal of this president’s character and credibility. The prosecutors will be reminded of this on each occasion that the president uses Twitter to express opinions on his legal issues. He yells “NO COLLUSION!” and his adamance may only suggest to investigators, along with all the other contrary evidence, the need to keep digging.
Cohen is also signaling with the release of this tape, as well as with interviews he has recently given, that he feels abandoned and that his patience with his former client’s lack of compassion or assistance is running out. He has made it known that he has more recordings in his possession. If the goal of this extraordinary behavior is to oil the way for a pardon, as some speculate but his lawyer denies, Cohen’s release of the tape will have the opposite effect. The president’s grant of a pardon in response to what is in effect an extortionate demand would open a new phase in the criminal investigation. While Trump seems to be convinced that he cannot engage in obstruction of justice, the use of the pardon to promote the destruction of evidence, or to tamper with witness testimony, is a prosecutable criminal offense—even under Alan Dershowitz’s reading of constitutional law.
The net result of this is to lock Cohen into a leading role as Donald Trump’s adversary. He can no longer look to Trump for relief, and now whatever he hopes for is available only from law enforcement. Trump may one day reflect bitterly on the irony of it all: Cohen learned the art of the deal from his former boss, and now the best deal to be struck is with the prosecution. It’s not really personal, just business.
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