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June 17th, 2019

Law & Order

Are the National Enquirer's emails to Jeff Bezos coercion, blackmail, neither or worse?

Deanna Paul

By Deanna Paul The Washington Post

Published Feb. 11, 2019

 Are the National Enquirer's emails to Jeff Bezos coercion, blackmail, neither or worse?
Amazon.com chief executive Jeffrey P. Bezos published a salacious blog post Thursday night detailing an "extortionate proposal" by top executives of the National Enquirer parent, American Media Inc.

Bezos, who owns The Washington Post, claimed the media company threatened to publish intimate pictures of him - including a "scantily-clad body shot" and a "below the belt selfie" - unless he abandoned the investigation he launched into the tabloid. (After the Enquirer published details of his extramarital affair with former TV anchor Lauren Sanchez last month, Bezos hired a team to learn how the outlet obtained personal text messages.)

Bezos put what he said were emails from the Enquirer to a lawyer representing his security consultant, Gavin de Becker, online for the world to see. In them, AMI's Chief Content Officer Dylan Howard and Deputy General Counsel Jon Fine explicitly said: Either you agree to issue a statement (which Bezos believed to be false) or we will publish intimate photos of you.

Readers called Bezos honorable and his strategy selfless. But without more detail, attorneys - in media and criminal law - are less aligned. Legal minds disagree over whether the corporation's actions meet the threshold of criminality. What is clear, though, is that the media company crossed into a realm that no reputable member of the press would go.

"Whatever business they're in, it's not the business of journalism," said Stuart Karle, former general counsel for the Wall Street Journal and the former chief operating officer of Reuters News.

• Did AMI commit a crime?

The applicable criminal statutes are coercion and extortion, according to Alex Spiro, a partner at Quinn Emanuel and former prosecutor.

"It's actually a unique governing body of law - you can't threaten that which is improper," he said. "Publishing embarrassing photos of someone isn't a crime in and of itself, but it's what the law can consider 'improper.'"

Spiro explained that the Bezos scenario presents unique challenges.

If AMI obtained the photos unlawfully, or encouraged someone else to do the same, they may have opened themselves up to an array of legal issues at both the state and federal levels. However, if nothing unlawful was done to gain the images, a court will face a more complex analysis.

"If you're in a dispute with an unnamed banker who works for a corporation, there may be no public interest in publishing a series of photos. A court would likely find that there was no other legitimate purpose but an improper one," he said.

The analysis could change when the victim is a public figure, like Bezos, and where the impact is not tangible, but reputational.

Other attorneys feel confident that the threat itself was unlawful.

According to victims'-rights attorney Carrie Goldberg, the crime that occurred - AMI threatening to expose Bezos with humiliating material - would fall under coercion laws.

"This is a completed crime," she said. "Based on the coercive nature of the threats, there wouldn't need to be an actual distribution of the naked pictures for there to be a criminal act."

If AMI had distributed the images, it would have triggered what's commonly referred to as revenge-porn laws. There are also several states that have civil laws related to nonconsensual distribution of intimate images.

• Is it blackmail?

Paul Cassell, a law professor at the University of Utah and a former federal judge, said in a phone interview that while blackmail historically had been understood as a demand for money or property, these laws have evolved, he said, and include demands for anything of value in some jurisdictions.

"The modern formulation of the crime is anything of value - and the statement that the Enquirer was trying to obtain to preserve its reputation would seem to me to qualify as something of value in their business operations."

Attorney Stuart Karle called it "a pretty straightforward case of blackmail."

"It's a quid pro quo: AMI is telling Bezos they're going to do something they don't have the right to do unless he issues a false statement and agrees to never talk about it again," said Karle. "In exchange, AMI will hold on to these photos and hold them over his head. That's an ugly scenario."

In AMI's purported email, it suggested that publishing intimate photos of Bezos was "indeed newsworthy and in the public interest." Somehow, according to Deputy General Counsel Jon Fine, nude photos and provocative text messages reflect the Amazon.com founder's business judgment, which millions of Americans have a "vested interest in."

Karle, now an adjunct professor at Columbia Journalism School, quickly quashed this argument.

"We know the impact of publishing the photos, it triggered his divorce with his wife, we know what he's done with Amazon, the idea people need to know more about that by publishing more pictures is weak to the point of being nonexistent," he said.

He also added that the material is copyright and AMI does not have a "fair use."


The AMI emails describe most of the photos as "selfies," which implies they were taken by the owner of the camera (either Bezos or Sanchez) and owned by the owner (again, either Bezos or Sanchez).

"It basically belongs to the person who takes the photo and they say repeatedly it's a 'selfie.' There's no mystery in their mind about who owns the photo," he said.

A statement Friday from the board, which is chaired by AMI's chief executive, David Pecker, said it was investigating Bezos' claims.

"American Media believes fervently that it acted lawfully in the reporting of the story of Mr. Bezos. Further, at the time of the recent allegations made by Mr. Bezos, it was in good faith negotiations to resolve all matters with him."

• Is it something worse?

Another wrinkle for AMI, which perhaps explains its angst - or, as phrased by Bezos, "about Mr. Pecker's apoplexy" - is its non-prosecution agreement.

After the media company admitted it paid former Playboy model Karen McDougal $150,000 before the 2016 election to silence her allegations about an affair with President Donald Trump, it signed a cooperation agreement with federal prosecutors in September.

The document stipulates only that the company will not be prosecuted for the "catch and kill" scenario and is contingent on AMI committing no other crimes. If the company's actions regarding Bezos meets the threshold of criminality, it would invalidate the cooperation agreement and limit the company's immunity.

This would put not only put AMI, but also Trump, back under the microscope in his dealings with the media company.

"I have been somewhat concerned by members of the press who are critical of the president embracing the non-investigation of AMI over story kills. Stories die for all sorts of reasons," Karle said. "Bezos' memo persuades me that their presentation is a sham."

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Deanna Paul covers national and breaking news for The Washington Post. Before joining The Post, she spent six years as a New York City prosecutor.


Previously:
12/28/18: Attorneys want a judge to force Trump to testify in a suit stemming from 2015 incident
12/28/18: FBI! Open the door!': The tactics behind the armed agents at Roger Stone's home
12/24/18: Women are sending love letters to Colorado man serving life sentence for killing his pregnant wife and two kids
12/21/18: Who are you accusing of treason, being a traitor!? Judge abuses terms in diatribe against Flynn. He SHOULD know better
12/12/18: Presidential election could determine whether Trump faces consequences for alleged crimes
11/20/18: Celebrating Trump's success in filling the courts
09/28/18: Death row inmates ask for execution by firing squad to avoid 'torturous' drug cocktail
08/02/18: Are they deadly? Are they free speech? Explaining 3-D printed guns
07/20/18: Trump promised to remake the courts. He's installing conservative judges at a record pace
07/19/18: Meet the man who might have brought on the age of 'downloadable guns'
07/13/18: Burgular who broke into an escape room repeatedly called 911 when he couldn't escape, police say

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