But the case still troubles me. It is an allegation of cooking the books to conceal "election interference" in the form of National Enquirer's plan to suppress any stories that might be damaging to Trump.
It is amply clear that Trump cooked the books, but is a trivial matter like perjury or tax evasion, generally only prosecuted if there is a serious underlying crime than cannot be reached. And I am having trouble seeing the underlying crime here.
Basically, David Pecker of the National Enquirer agreed to pay hush money to anyone who had a story that could hurt Trump, and to run hit pieces on his political rivals. That is not illegal. To be clear, not all of it is protected by the First Amendment. Pecker admitted to falsifying a photograph of Ted Cruz's father to make a fabricated story linking him to pro-Castro Cubans and even to the John F. Kennedy assassination. Telling knowing lies of that kind is not protected by the First Amendment. It is textbook defamation and is civilly actionable (although presumably the statute of limitations has expired), but it is not a crime.
The National Enquirer coordinated carefully with the Trump campaign. Pecker met with Trump to discuss what stories out there might be dangerous, how to spot them, how to suppress them, and what to say about Trump's rivals. This goes against accepted journalistic ethics, which do not allow publications to act as propaganda arms unless they openly proclaim themselves to be so (such as the Daily Worker, openly proclaimed propaganda sheet for the Communist Party). Other political campaigns have made clear that they have never had such an arrangement and that such things are absolutely not normal. But that is not the same as saying that such things are a crime.
But standards of journalistic ethics are not laws. The only enforcement mechanisms are publicity and shame, neither of which has much effect on the National Enquirer. And so far as I can tell, the right wing media does not see these standards as binding on them. They see any claims of journalistic ethics is mere cover for liberal bias and if mainstream outlets do not blatantly coordinate with campaigns -- well, they do so implicitly and they are much bigger than the right wing media, so the right wing media has to be more direct to compete.
The question is whether any of this breaks campaign finance laws. I don't pretend to know. There has been one attempt to prosecute payoffs to a mistress as unreported campaign contributions in the case of John Edwards. The jury declined to convict, which is not legally binding precedent, but can reasonably be taken as a guideline on how to exercise prosecutorial discretion.
In Edwards' case, the bribes were paid by a rich friend. In Trump's case, the rich friend was acting on behalf of a for-profit corporation. Apparently there are campaign finance laws restricting coordination for between a campaign and a for-profit corporation, and for obvious reasons. The room for corruption is all too apparent. But in the case of media entities, such restrictions raise a host of difficult first amendment questions.. Is advocacy journalism really an unreported campaign contribution? What about puff pieces, or hit pieces, that even purportedly objective publications routinely publish? And what about editorials? What about granting anonymity to a campaign insider with a self-serving account? The possibilities are too extensive to consider.
On the other hand, I can't help but wonder what the reaction might be if the shoe were one the other foot. After all, Jeff Gerth of the Columbia Journalism Review wrote a whole series denouncing Hillary Clinton's conduct in the 2016 election as scandalous for encouraging the press to publish stories about Trump's ties to Russia and drew attention to the ones that were actually published. John Durham was in an absolute tizzy that Hillary Clinton tried to "stir up a scandal" about Trump's ties to Russia and, while he acknowledged that stirring up a scandal about your political opponent is not a crime, thinks it was definitive proof of Trump's innocence and should have been seen so by the FBI.
And, of course, when Twitter and Facebook declined to circulate the New York Post story about Hunter Biden's laptop, this led to accusations of weaponization of government, Congressional investigation, and Elon Musk buying out Twitter to prevent further acts of "censorship." It should be noted that the Post story was still out there and anyone curious could have found it by a Google or other internet search, and that both social media companies relented within a matter of days. But no matter, there was at least a partial attempt to halt circulation of a story that could hurt a Trump opponent, and his supporters thought the matter worthy of committee hearings.
Imagine the outcry if such a story had been completely suppressed until after the election.
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