The story of The President and the Porn Actress (our era’s The Prince and the Showgirl) isn’t going away. The tale of pseudonyms and secret payments made through here-today-gone-tomorrow Delaware corporations has proved to be far juicier than anything so tired as an allegation that Donald Trump was unfaithful to his wife a decade ago.
Things got rolling with the Wall Street Journal’s January 13 story that Stephanie Clifford (stage name, Stormy Daniels) had received money shortly before the 2016 election. The deal was said to have been brokered by a Trump lawyer, to buy her silence about an alleged sexual relationship with Trump in 2006. Now Common Cause has filed a pair of complaints with the Justice Department and the Federal Election Commission, arguing “that the payment of $130,000 from Essential Consultants LLC to Ms. Stephanie Clifford was an unreported in-kind contribution to President Trump’s 2016 presidential campaign committee.”
Leaving aside the FEC rules, which will no doubt be litigated to a fare-thee-well, this seems to be a case of something sordid and tawdry, not illegal. But it does raise an interesting legal question: If paying someone with embarrassing information to keep quiet is fine, why is asking for such a payment a crime?
Blackmail is a notoriously tricky legal concept that in practice can turn on who makes the first move and how he or she makes it. In all of the coverage of the story, there has been nothing to suggest that Clifford or any surrogate ever approached Trump with demands.
“I would guess that Trump’s lawyers went to the porn star and asked to buy her silence. They obviously didn’t want her to write a book or article about her experiences. That’s not blackmail because there’s no threat; there’s only an offer,” says Rutgers law professor Stuart Green, who has written about blackmail law. “By contrast, if Stormy had come to Trump and said ‘I’m going public unless you pay me,’ that would be blackmail because that would involve a coercive threat. So it all depends on who moves first and whether you have a threat or an offer.”
Having a savvy lawyer is crucial to keeping on the right side of the law when fishing for an offer. But don’t think that just because one has a lawyer involved one can legally make coercive threats. In a 1969 case in Vermont, State v. Harrington, a divorce lawyer was convicted of blackmail for demanding cash from his client’s husband in exchange for not filing what he threatened would be an “embarrassing reputation-ruining divorce proceeding.” That may have just been bad lawyering, though. The lawyer included with his demand a photo he had taken after arranging for a working girl to seduce the husband. If the husband’s infidelity hadn’t been a set-up, and the lawyer had merely threatened to file for divorce, letting the husband figure out himself what that would mean for his reputation, then it probably wouldn’t have been blackmail but merely legal bargaining.
One of the things a lawyer can do is to represent a client who is selling his or her memoirs. A notorious madam might propose such a book and see who makes offers to buy it. If handled correctly, there would be no reason to think anything illegal had been done. In such a case, the buyer is acquiring not only silence, but a copyright. Interestingly, the pre-election contract involving Stormy Daniels was titled “Confidential Settlement Agreement and Release: Assignment of Copyright and Non-Disparagement Agreement.”
That said, packaging coercive threats in the form of a book proposal is itself no protection against a blackmail rap. Ludovic Pignatelli was an immigrant who came to New York a century ago. He had a distant relative, Guido, also in the States, who fashioned himself Prince Pignatelli, a title to which Ludovic thought he had the right. And so in 1940 Ludovic threatened his relative that unless Guido stopped using the title and paid some damages, he was going to write an autobiography that would expose Guido as a “faker.” The court, in United States v. Pignatelli, called this blackmail and ruled one couldn’t use “defamation as a club.”
But the law makes a crucial distinction between making a threat and just getting the word out.
Before the non-disclosure agreement was signed, Stormy Daniels was talking to journalists about her dalliance with Trump. She even showed Slate’s Jacob Weisberg what appears to be a two-page side-agreement detailing the pseudonyms that were being used in the main contract. In one way that was awfully indiscreet—put too much of a story on the record and the interested party loses his incentive to make an offer. But in another way, it’s awfully clever—by getting the rumor mill going, the other party is apprised of his peril without anyone having to make any threats at all. “It’s a delicate dance to try to scare your target without undermining the secrecy of the information,” says Rutgers law professor Green.
The subtle masters of this dance never have to make threats, explicit or otherwise. Consider the way FBI director J. Edgar Hoover used to keep lawmakers in line. William Sullivan—until he got on the wrong side of Hoover, the third-ranking official at the bureau—later described the Hoover method of friendly persuasion. “The moment he would get something on a senator” or someone in the senator’s family, according to Sullivan, “he’d send one of the errand boys up and advise the senator that ‘we’re in the course of an investigation, and we by chance happened to come up with this data on your daughter. But we wanted you to know this. We realize you’d want to know it.’ Well, Jesus,” Sullivan declared, “what does that tell the senator? From that time on, the senator’s right in his pocket.”
Blackmail law isn’t just a matter of fine lines between hard bargaining and criminal coercion: For many philosophers of law, such as Jeffrie G. Murphy, it’s a conundrum. If I have damaging true information about you, I have a perfect right to go to the media or otherwise publicize what I know. I can sell the information to anyone I like, even you, should you make an offer. But what I can’t do is threaten you with any of these things and make demands of you. Even though you might be perfectly happy—or at least happier than the alternative—to be given the opportunity to buy my silence. “The old saw has it that two wrongs cannot make a right,” legal philosopher Alan Wertheimer has written. “The paradox of blackmail is that two rights can make a wrong. How can that be?”
Many of those who have grappled with the paradox of blackmail have tried to solve it by pointing to harm done to a third party. For example, the blackmailer who has information about a wandering husband’s extramarital affairs, but whose silence is bought, might be said to have harmed the cad’s wife by withholding from her information she had a right to know. Or, as Wertheimer wrote, “it might be argued that the prohibition of blackmail is not meant to protect individual rights at all. After all, blackmail is a crime, and crimes are said to be wrongs against the society.” One such harm to society might be the injury to an electorate deprived of significant, true information about a candidate by someone who has taken a payoff to keep that information secret—a scenario that gets us rather closer to the case at hand. The idea that cash for Stormy constitutes an illegal campaign contribution may be a stretch, but it does capture an intuition that the person shortchanged in the transaction was the voter.
Libertarian law and economics guru Richard Epstein is one of the scholars who has tangled—in a 1983 law review article “Blackmail Inc.”—with the tricky topic of when and how protected free speech turns into illegal coercive speech. He doesn’t think anyone has successfully solved the paradox of blackmail, but he does think that President Trump may now be uniquely protected from any future efforts at extortion: So “many people regard him as a sleaze,” Epstein says, “that he does not have a personal reputation that could be damaged by any revelations.”
Is blackmail rare? Scholars have argued that, by its very nature, the crime is systematically underreported: To the extent victims of shakedowns pay up, the hush money succeeds in keeping things hush-hush (at least until the extortionists come back for another bite at the apple). Sociologist Mike Hepworth suggested in Blackmail: Publicity and Secrecy in Everyday Life that a better measure than crime statistics of how much reputation-menacing goes on is the frequency it is found in crime fiction, which is rife with blackmail. In a British crime novel of the ’30s, if there’s a poisoning, chances are it is to get rid of a blackmailer. And in the States, the hard-boiled shamus is often called in to deal with blackmail “angles,” as Philip Marlowe does in The Big Sleep (a novel that happens to involve pornographers shaking down their customers).
The hypermodern version of blackmail has involved hacking to obtain embarrassing communications, as when North Korea notoriously captured the emails of Sony Pictures and then demanded that the studio deep-six the film mocking Kim Jong-un it had been about to release.
However much blackmail actually goes on, we are perhaps a bit too sanguine about it. Once upon a time, blackmail was considered “the foulest of crimes—far crueler than most murders because of its cold-blooded premeditation and repeated torture of the victim,” British barrister C. E. Bechhofer Roberts wrote, declaring it “incomparably more offensive to the public conscience than the vast majority of other offences which the law seeks to punish.”
But that was in an age when one’s personal reputation counted for more and was put more at risk by disclosures of indiscretions. Ours, by contrast, is an age of commonplace nondisclosure agreements; as we have learned in recent weeks, the corporate practice of preemptively paying settlements to protect the reputations of misbehaving men is more widespread than imagined.
Who but the stupid or clumsy would resort to blackmail these days, when the lawyers can just get together, ever so nicely and legally, to arrange an agreement?
Eric Felten is a senior writer at The Weekly Standard.
