I recently wrote in these pages about a conundrum that has long fascinated lawyers and legal scholars, the blackmail paradox (“You’ve Got Blackmail,” Feb. 5). If I know damaging information about you and that information was not acquired under privileged circumstances—that is, I’m not your priest or doctor or lawyer—I can shout that information from the rooftops. What I can’t do is go to you and promise, in exchange for money or something else of value, not to shout it from the rooftops.
How is it that it is illegal to ask for money not to do something that one has a legal right to do or not do?
The occasion for musing on the legal quirks of extortion was the Stormy Daniels story. Little did I know that the Daniels storm, instead of blowing over, would blow up—perhaps even, as National Review’s Andrew McCarthy has argued, putting the Trump presidency in more peril than anything Russia-related. Certainly the president’s personal lawyer is now in considerable jeopardy, like anyone on the receiving end of a sudden visit from FBI agents brandishing search warrants.
How was it, I wondered, that Daniels had managed to collect hush money without running afoul of criminal extortion statutes? The likely answer, as several law professors expert in the subject told me, was that instead of making threats to reveal her encounters with the future president, the porn performer probably sat back and waited for an offer from the Trump entourage to make it worth her while to stay mum. That offer duly came from Trump’s longtime lawyer Michael Cohen, who bought her silence—or at least thought he had—with a payment of $130,000 in October 2016.
The basic distinction is that accepting an offer to keep quiet isn’t blackmail, whereas demanding payment to do the same is.
But even if Stormy’s sort of non-explicit non-solicitation is allowed by the law, it still helps us understand why, as sociologist Mike Hepworth pointed out in Blackmail: Publicity and Secrecy in Everyday Life, criminal statutes have long treated blackmail as a particularly nasty business.
How nasty? Blackmail is “considered the foulest of crimes,” argued British barrister C. E. Bechhofer Roberts, “far crueler than most murders because of its cold-blooded premeditation and repeated torture of the victim; incomparably more offensive to the public conscience than the vast majority of other offences which the law seeks to punish.” That may be putting it a little strongly, but the “public conscience” has always viewed blackmail as a low, dirty business.
Another tricky issue is why the law considers the person being blackmailed a victim. Why is it the blackmailer who has traditionally gotten all the opprobrium rather than the blackmailee? After all, people who are squeaky clean in their personal and professional lives are not likely to be shaken down. The mark is usually someone who has done something criminal or debauched or illicit. Why should the law care about protecting rogues? Don’t they deserve what they get? Maybe it is a sort of sentimentality in the law, not wanting to encourage those who would exploit the weaknesses and vulnerabilities of others. Maybe also it harks back to a time when Christian moralists took seriously the the sin of “detraction”—the revelation of another person’s faults for no valid reason.
There’s also the problem that the person paid-off rarely stays paid-off for long. That’s what Bechhofer Roberts was talking about in describing the “repeated torture of the victim.” Without suggesting that Stormy or her counsel have crossed any legal lines, the performer hasn’t exactly been mum about the event she accepted six-figures to be mum about. For all his sneaky, labyrinthine lawyering (such as assigning, in a side-agreement, pseudonyms to the parties) Cohen failed to craft a contract that could be enforced without producing publicity. It may or may not count as “repeated torture” but it’s clear that Cohen didn’t exactly get value for his money—a sort of unfairness that the law doesn’t like.
Money may also be at the heart of the law’s unwillingness to treat shakedowns as just another form of contractual agreement. The victim has to come up with the money to pay the blackmailer without letting anyone know what the money is for. This encourages any number of shady financial dealings, if not outright crimes, by the target as he struggles to acquire cash on the Q.T. Consider the disgraced former speaker of the House Dennis Hastert, who had molested teens back in his days as a high school wrestling coach. One of Hastert’s victims, rather than go to court, took secret payments to keep quiet, eventually collecting well over $1 million. Hastert was reduced to shifty bank withdrawals to make his payments. When asked by the FBI about the financial maneuverings, Hastert lied. These were felonies that would not have happened without the need to keep the payouts hidden. The law’s sympathy for people caught in such a jam has eroded significantly—prosecutors didn’t hesitate to convict Hastert on the financial crimes, using them as a sort of stand-in for his sexual predation.
Michael Cohen isn’t being investigated for trying to cover up anything so heinous. But reporting suggests that U.S. attorneys are interested in whether his efforts to keep the Stormy Daniels transaction under wraps led him to commit financial or election-law violations. If such crimes can be proved, don’t expect courts to treat Trump’s lawyer as any sort of victim.
One way we might be able to solve the blackmail puzzle is to recognize that anti-extortion laws function in part as a social strategy to reduce situations that lead to criminal activities. Or maybe the law simply reflects our moral intuition that blackmail is low, ugly stuff that degrades even the already degraded.
