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Harvard law professor: If the White House threatened 'Morning Joe' hosts with a National Enquirer story, it's a crime

Allan Smith

If President Donald Trump or members of his administration told MSNBC's Mika Brzezinski and Joe Scarborough that a National Enquirer hit piece would be published unless they provided the president with better coverage, that would be a crime, a Harvard law professor said.

Laurence Tribe, a liberal Harvard Law School professor who worked in the Obama administration, tweeted that if the White House told Brzezinski and Scarborough that the tabloid would "smear them unless they laid off" Trump, it would be a violation of the anti-extortion statute.

That statute, 18 US Code 872, says: "Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned."

The statute appears to leave open a window for interpretation. One could read it as covering only extortion directly tied to an amount of money, as another line in it specifies the punishment for an official "if the amount so extorted or demanded does not exceed $1,000." But the statute could also be read to cover any possible "act of extortion," and the National Enquirer incident, if true, could fall under that umbrella.

"If Trump told staffers to extort, he too has committed that serious crime," Tribe, whom Trump once cited at a 2016 Republican primary debate to question whether Sen. Ted Cruz was eligible to run for president, subsequently tweeted.

Alan Dershowitz, the famed attorney and a fellow Harvard law professor, disagreed with Tribe's assertion.

"Threatening to smear someone who smears him is not extortion," Dershowitz tweeted. "If it were prisons [would] be more overcrowded. Jefferson [would] have been imprisoned."

"Why are many libs willing to expand crim statutes/contract constitution in futile effort to 'get' Trump," he said in a follow-up tweet. "Establishes dangerous/bad precedent."

The National Enquirer story, published earlier this month, accused "Morning Joe" cohosts Brzezinski and Scarborough, who announced their engagement in May, of carrying on an affair while married to other people and of using "ironclad divorce deals to keep their dirty secret." Questions about it arose after Trump's vicious Thursday tweets claiming Brzezinski had been "bleeding badly from a face-lift" during a trip to his Mar-a-Lago estate in December, a claim that photos of Brzezinski seemed to disprove.

The pair wrote in an op-ed in The Washington Post on Friday: "This year, top White House staff members warned that the National Enquirer was planning to publish a negative article about us unless we begged the president to have the story spiked.

"We ignored their desperate pleas," they wrote.

Trump's response to the allegation on Friday morning appeared to confirm that such conversations took place.

"Watched low rated @Morning_Joe for first time in long time," Trump tweeted. "FAKE NEWS. He called me to stop a National Enquirer article. I said no! Bad show."

After Trump's tweet, both The Daily Beast and New York magazine published reports about the context of the conversations between the White House and the hosts of "Morning Joe" regarding the National Enquirer story.

White House officials told The Daily Beast that Scarborough had spoken "many weeks ago" with Jared Kushner, a senior adviser and Trump's son-in-law, whom Scarborough is known to be close with, about the upcoming story.

The officials said Scarborough "calmly sought" the advice of Kushner, who "recommended he speak with the president."

But those sources said there was no hostile threat or blackmail attempt in those conversations.

New York magazine, citing "three sources familiar with the private conversations, made public a much different account:

"After the inauguration, Morning Joe's coverage of Trump turned sharply negative. 'This presidency is fake and failed,' Brzezinski said on March 6, for example. Around this time, Scarborough and Brzezinski found out the Enquirer was preparing a story about their affair. While Scarborough and Brzezinski's relationship had been gossiped about in media circles for some time, it was not yet public, and the tabloid was going to report that they had left their spouses to be together.

"In mid-April, Scarborough texted with Trump son-in-law Jared Kushner about the pending Enquirer story. Kushner told Scarborough that he would need to personally apologize to Trump in exchange for getting Enquirer owner David Pecker to stop the story. (A spokesperson for Kushner declined to comment). Scarborough says he refused, and the Enquirer published the story in print on June 5, headlined 'Morning Joe Sleazy Cheating Scandal!'"

Trump is close with Pecker, who has run several pro-Trump pieces in his publication in addition to salacious, unfounded stories involving Cruz and 2016 Democratic presidential nominee Hillary Clinton.

New York magazine noted that Trump tweeted last August: "Some day, when things calm down, I'll tell the real story of @JoeNBC and his very insecure long-time girlfriend, @morningmika. Two clowns!"

Joe Scarborough and Mika Brzezinski
Joe Scarborough and Mika Brzezinski

(Joe Scarborough and Mika Brzezinski.Jonathan Ernst/Reuters)

In a Friday statement, the National Enquirer denied any knowledge of or involvement in any discussions between the "Morning Joe" hosts and the White House.

But after Trump's Friday tweet, many were quick to note his not-so-subtle acknowledgment that he had the power to thwart a National Enquirer story.

"Woops, you just admitted you can kill National Enquirer stories if you want," tweeted Judd Legum, the editor of the liberal website Think Progress.

Trump "had power over Nat'l Enquirer coverage of Joe & Mika's private life," tweeted Jonathan Alter, an MSNBC analyst, who questioned whether he "also orchestrated hits on" Cruz, Clinton, or Ben Carson, a 2016 Republican presidential candidate.

Scarborough shot back at Trump's tweet, but his answer led to additional questions.

"Yet another lie," he tweeted. "I have texts from your top aides and phone records. Also, those records show I haven't spoken with you in many months."

But MSNBC told Politico that it would not immediately release those conversations, which caused some to question why the "Morning Joe" hosts and their network would hold back.

"If NBC talent were being blackmailed, threatened by the WH, why would they sit on this for so long?" tweeted John Weaver, the chief strategist for Republican Ohio Gov. John Kasich's 2016 presidential campaign. "Or at all?"

Tribe, who said he was confident the White House violated the law with the Enquirer story, tweeted that he'd be pleased if this too became an element of special counsel Robert Mueller's investigation into Russia's meddling in the 2016 election.

"It would be poetic justice for Trump if Special Counsel Mueller were to interview @JoeNBC & @morningmika as part of his investigation of WH," he wrote.

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