Now we know what it looks like when unscrupulous members of the press collude with corrupt politicians.
Through the testimony of Hope Hicks, David Pecker and others, plus and reams of text messages, New York criminal prosecutors have painted an excruciatingly detailed picture of the bartering that led to the National Enquirer and Donald Trump buying negative stories for the purpose of quashing them.
In his opening statement, Trump’s lawyer told the jury that “there’s nothing illegal” about signing checks, making hush money payments and enforcing nondisclosure agreements. While it’s not unusual for a defense attorney to tell a jury to focus only on individual pieces of the puzzle and not look at the whole bad picture, the general public shouldn’t fall victim to such misdirection. Regardless of the outcome of this trial, what we’ve seen thus far is indisputable proof that Donald Trump doesn’t adhere to or care about — or perhaps even understand — why America values an independent and free press. To Trump, turning the press into a tool that serves his own ends is all that matters.
What we saw last week is indisputable proof that Donald Trump doesn’t adhere to or care about — or perhaps even understand — why America values an independent and free press.
Pecker, the former CEO of American Media Inc. (AMI), which published the National Enquirer, testified last week that paying for exclusive stories to publish — a practice that Pecker called “checkbook journalism” — had long been a part of AMI’s toolbox. Pecker was equally forthcoming about his willingness to pay for other exclusive stories for the sole purpose of killing them, as AMI did with Karen McDougall’s tale of her 10-month affair with a married Trump. Pecker also acknowledged that Michael Cohen, working on behalf of Trump, paid Stormy Daniels $130,000 to buy her silence and her story about their sexual encounters for the National Enquirer, with the understanding that the Enquirer would kill the story to benefit Trump’s candidacy. His testimony was corroborated by Keith Davidson, the attorney for McDougall and Daniels, who received the payments on behalf of both women.
Freedom of the press is the right of a publisher to decide, without interference by the government, what to publish. That right is enshrined in the Constitution’s First Amendment, which provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” In our Constitution, then, the right to a free press is on equal footing with the right to exercise one’s religion or assemble peacefully.
In fact, freedom of the press is so important to us that we give unusual leeway to journalists. For example, the U.S. Supreme Court has acknowledged that subpoenaed journalists may have a right in some circumstances not to reveal the reporter’s sources (that is, a court must balance the reporter’s First Amendment rights against a party’s need for the subpoenaed information). In the wake of that 1972 Supreme Court decision, 40 states enacted “shield laws” that allow journalists to withhold the identities of their confidential sources; most federal courts have followed suit, and almost all the remaining states and courts offer some kind of judicial protection for journalists’ confidential sources.
In return, of course, journalists often take immense risks. Since 1993, UNESCO reports over 1,660 journalists worldwide have been killed as a result of performing their duties. In 2022, a record 533 journalists were in detention around the world, according to Reporters Without Borders. In our country, the heavy price that the journalistic community pays, and the accommodations it receives in return, support our constitutional right to see, hear and evaluate for ourselves published facts and opinions.
A free press is a bedrock of American democracy. We protect our free press because we have seen what happens in countries that don’t. But in this trial, prosecutors have illustrated, once again, Trump’s willingness to take something earned by others and corrupt it for his own benefit. This hardly comes as a surprise, as Trump has previously derided other important institutions — the Department of Justice, the FBI, the courts — when they did not bend to his personal wishes. But now we see how readily Trump gave away even our ability to see facts with our own eyes. Now we see how readily Trump gave away even our ability to see facts with our own eyes.
David Pecker, who considers himself a businessman, did things that were far from laudable. Yet if the First Amendment guarantees a publisher the right to publish what he wishes, perhaps a publisher also has a right not to publish, for whatever reason. But Trump, as the head of a company and a candidate for president, had to abide by different set of rules, including New York state business rules, campaign finance laws and tax laws. More to the point, a presidential candidate who swears to “preserve, protect and defend the Constitution of the United States” should not be someone who undermines the First Amendment by paying to suppress information relevant to voters. In his opening statement, Trump’s attorney Todd Blanche tried mightily to convince the jury that there is nothing to see here. “There is nothing illegal,” Blanche said, about buying negative stories for the purpose of killing them or insisting on nondisclosure agreements. “I have a spoiler alert,” he told the jury. “There is nothing wrong with trying to influence an election. It’s called democracy.” Here’s the real spoiler alert: None of this had anything to do with democracy.
Carol C. Lam
Carol C. Lam was a U.S. attorney for the Southern District of California and a federal prosecutor for 18 years. She also was a Superior Court judge in San Diego County. She is a legal analyst for MSNBC. 
