[View here as a Twitter thread]
(thread) OK, what’s the big deal about the “Catch and Kill” arrangements Trump & Cohen had going with the National Inquirer (AMI)? Spoiler: The behavior is criminal and/or meets the elements of civil fraud. Plus it shows a pattern and practice tying the behavior to TrumpRussia.
“Catch and Kill” is when a magazine buys a story with the intent of burying the story. The key word in the above sentence is “intent.” The “intent” part is what makes it criminal and/or fraudulent.
The accusation—supported by evidence in news stories and tape recordings—is that AMI helped Trump by killing stories that would embarrass him. Karen McDougal claims she entered a contract (K) with AMI; they paid $150K for her story, then buried it. The K also silenced her.
She says she believed they would publish her story. She didn’t understand the contract also silenced her. nytimes.com/2018/03/20/us/… She accused Cohen and her lawyer of being in cahoots to mislead her about the contract. (Her lawyer was also Stormy Daniel’s first lawyer)
Possible crimes depend on all the facts and statutes in the governing jurisdiction. Let’s see if the facts support the elements of common (civil) fraud. Here are the (general) elements of fraud:
Fraud: (1) a false statement of a material fact (2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) the victim relies on the statement, (5) and the victim is injured.
So it comes down to intent. If she was duped, all the above elements are met. Because the incident occurred right before the election to help a candidate, and a large sum of money was paid, it also (potentially) violates campaign finance laws.
We also learn from the tape released this past week that Cohen set up a company to pay for the AMI transaction & implied that there were other such negative stories to kill. Thus Trump, the Trump Org & Cohen were orchestrating a fraud (which should surprise exactly nobody).
This incident (with Stormy Daniels & others) sets up a pattern and practice, meaning: Evidence of a person’s habit or an organization’s routine practice may be admitted as evidence that on a particular occasion, the person or organization acted in accordance with the habit.
So if a guy robbed 10 liquor stores using the same tactics, and an 11th store was robbed, but the only evidence was that he was in the area and the robbery followed the same pattern, the prosecutor is allowed to admit the pattern as evidence that the guy also robbed store #11
More on pattern and practice here: law.cornell.edu/rules/fre/rule… The Steele dossier alleges that Trump “paid bribes and engaged in sexual activities [in Russia] but key witnesses silenced and evidence hard to obtain.”
A pattern silencing witnesses to sexual activity via payments thus helps substantiate allegations in the dossier. Why do tabloids “catch and kill” ? Two possible reasons: To do a favor for a celebrity, or to have leverage over the celebrity.
IOW, AMI can always blackmail Trump by threatening to publish the story. So the incident also lends credence to claims that Trump is widely vulnerable to blackmail. BTW, there were false legal statement in this WSJ article about Cohen-Trump
“One looming issue for both prosecutors and AMI is the publisher’s status as a media organization, which would afford it First Amendment protections.” and: “The legal bar is high to strip any media organization of its constitutional protections.”
WRONG! The 1st Amendment protects speech, not organizations. What comes from my office printer has the same 1st Amendment protections as the WaPo. I traced the false statements to the AMI lawyer. (SPOILER ALERT: Not everything lawyers say is true. Shocking, I know.)
The AMI lawyer said they were within their First Amendment rights in refusing to publish a story & they have the same constitutional protection as other media orgs. It’s true that they have a right to decide not to publish an article. However the First Amendment doesn’t protect fraudulently inducing people into contracts and duping them about the contents. (But nice try, AMI) There’s more, but 16 tweets is a good place to stop.
