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Paul Callan: They say Trump's staff offered to quash a National Enquirer report about them

They said it was an effort to get them to stop criticizing the President

Callan says it would be hard to prove it was abuse of power

Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and currently is of counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.

CNN —  

As most Americans begin a particularly lengthy Fourth of July holiday weekend, television screens, and virtually all the media are focused on the burning questions: “Did Mika really have a face-lift?” and “Did Trump really tweet that?”

Normally we could brush these questions aside as no more important than, “Will she say yes to the dress?” a reality-show favorite of my normally sane, bright and professional daughters.

In Mika Brzezinski’s case, however,the answer is being seriously discussed as possibly having a bearing on whether the President of the United States has committed an act of possible criminal blackmail and/or extortion directed against two well-known cable news broadcast journalists.

The answer to both questions is likely to be no, but like all legal answers, there is a bit of nuance attached to the “no.”

In a Washington Post op-ed Friday, while vigorously defending Brzezinski, his co-host and fiancée, MSNBC’s Joe Scarborough let it slip that she “did have a little skin under her chin tweaked, but this was hardly a state secret. Her mother suggested she do so, and all those around her were aware of this mundane fact.”

For the record, The American Society of Plastic Surgeons defines a “face-lift” or “rhytidectomy” as a “surgical procedure that improves visible signs of aging in the face and neck, such as … loose skin and excess fat of the neck that can appear as a double chin or ‘turkey neck.’”

This is only relevant because when the nation’s commander in chief should have been preparing to discuss the measures needed to stop the commencement of nuclear war on the Korean Peninsula during his meeting later in the day with the South Korean President, he took the time to tweet the nation and the world his impressions of Mika Brzezinski during a prior visit to Mar-a-Lago.

In two sequential and bizarre tweets, even taking into consideration the low bar previously set by Mr. Trump, the President stated:

“I heard poorly rated @Morning_Joe speaks badly of me (don’t watch anymore). Then how come low I.Q. Crazy Mika, along with Psycho Joe, came … to Mar-a-Lago 3 nights in a row around New Year’s Eve, and insisted on joining me. She was bleeding badly from a face-lift. I said no!”

In responding to the tweets, Scarborough and Brzezinski in their op-ed recounted conduct by the President that, if true, looks and feels like a form of what most people think of as blackmail or extortion. But it probably falls short of the criminal offense.

The MSNBC cable stars assert:

“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.”

If what they wrote is true, presumably, the President was seeking to make a trade – the “quid pro quo” being that the President would quash the bad press coverage of Scarborough and Brzezinski by the National Enquirer in exchange for their promise to stop criticizing Mr. Trump.

It sounds like blackmail because it really feels like he is saying: Stop criticizing me or I will see to it that the National Enquirer will print a false story about you.

And in fact there is a federal criminal statute prohibiting extortion and blackmail by federal officers or employees and those impersonating federal officers or employees: 18 US Code Chapter 42

But to prove a criminal act, the statute requires a demonstration that the accused used or threatened the use of the power of their office or position to commit the illegal act. In the case of Joe and Mika, President Trump has had a long-standing prior friendship with the publisher of the National Enquirer and it would be impossible to establish that the publisher would follow a suggestion to kill the story – whether because of a long-standing friendship or because Mr. Trump was President or was soon to assume the presidency.

At law the distinction is critical and in this fact-pattern virtually unprovable.

Also, politicians, as a matter of routine, trade favors – like using influence to kill stories – and it is hardly likely that any jury would find someone guilty of a crime for such an act. Presidents have always, for instance, used their influence and that of their subordinates to quash embarrassing press coverage about their children or other family members.

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    If a President promised an exclusive interview with a magazine if that magazine killed a story about an embarrassing school incident involving his child, would that be extortion or blackmail? Most jurors and prosecutors would think not. Such a case would never be pursued.

    The President’s reprehensible tweets with respect to Joe and Mika indicate a frightening lack of judgment and a petty desire for revenge unhealthy in a man who controls the nuclear football. It demeans the dignity of the presidency and should give the American public a lot to worry about during the President’s interactions with foreign leaders, who hope to find a stable and emotionally controlled American leader in the perilous times ahead.