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 President Barack Obama's administration, tweeted that if the White House told Brzezinski and Scarborough that the supermarket tabloid would "smear them unless they laid off" Trump, it would be a violation of the anti-extortion statute.
— Laurence Tribe (@tribelaw) June 30, 2017
That statute, 18 US Code 872, states that "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 only covering extortion that is directly tied to an amount of money, citing the line that reads "if the amount so extorted or demanded does not exceed $1,000." But the statute can also be read to cover any possible "act of extortion," with the National Enquirer incident falling 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 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 continued in a follow-up tweet. "Establishes dangerous/bad precedent."
Questions over the National Enquirer story — which was published earlier this month and accused "Morning Joe" co-hosts Brzezinski and Scarborough, who announced their engagement in May, of carrying on an affair while still married to other people and using "ironclad divorce deals to keep their dirty secret" — arose in the aftermath of Trump's vicious Thursday tweet attacking Brzezinski for "bleeding badly from a face-lift" during a trip to his Mar-a-Lago estate in December, a claim that photo evidence seemed to disprove.
The pair wrote an op-ed in The Washington Post on Friday that "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 responded to the allegation in a tweet Friday morning, appearing 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."
Following Trump's tweet, both The Daily Beast and New York magazine published reports that detailed 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 with senior adviser and Trump's son-in-law Jared Kushner, whom he is known to be close with, "many weeks ago" regarding the upcoming Enquirer story.
The officials said Scarborough "calmly sought" Kushner's advice, who "recommended he speak with the president."
But those sources said there was no hostile threat or blackmail attempt in those conversations.
A much different account was made public by New York magazine.
In this account, which was sourced to "three sources familiar with the private conversations," the following happened:
"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 in turn has run a number of pro-Trump pieces in his publication, in addition to salacious, unfounded stories involving Cruz and 2016 Democratic presidential nominee Hillary Clinton.
As New York magazine noted, Trump tweeted last August that "Some day, when things calm down, I'll tell the real story of@JoeNBC and his very insecure long-time girlfriend, @morningmika. Two clowns!"
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 following Trump's Friday tweet, many were quick to note his not-so-subtle admission that he had the power to thwart a National Enquirer story.
"Woops, you just admitted you can kill National Enquirer stories if you want," Judd Legum, editor of the liberal website ThinkProgress, tweeted.
Trump "had power over Nat'l Enquirer coverage of Joe & Mika's private life," MSNBC analyst Jonathan Alter tweeted. "Did he also orchestrated [sic] hits on Cruz, Carson, HRC?"
Scarborough shot back at Trump's tweet, but his answer led to additional questions.
"Yet another lie," he tweeted in response. "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, chief strategist for Republican Ohio Gov. John Kasich's 2016 presidential campaign. "Or at all?"
Tribe, who is confident that 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 overarching investigation into Russian election meddling.
"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.