It is for Congress, not the courts, to stop a president from wielding executive power in extortionate ways toward unsavory ends.
Recording our podcast yesterday, Rich and I discussed the then-breaking news that Paramount, which owns CBS News, had agreed to pay $16 million to settle President Trump’s preposterous lawsuit over 60 Minutes’ now-notorious selective editing of an interview with Kamala Harris during the 2024 campaign. (See NR’s news coverage, courtesy of John R. Puri.)
Today, in editorializing on the matter, the Wall Street Journal notes that Senator Ron Wyden (D., Ore.) said he will be “first in line” calling for federal bribery charges if the Democrats retake the White House in 2029 (the statute of limitations for bribery, as for most federal crimes, is five years). In the meantime, Senator Wyden is encouraging “state prosecutors [to] make the corporate execs who sold out our democracy answer in court.”
It is nigh impossible to imagine that Paramount would have settled with the president had it not been for its desire to complete an $8 billion merger with Skydance Media. Put aside that, these days, all big mergers have to worry about getting past the Justice Department’s antitrust bullies (who pervade the Trump DOJ just as they do the DOJ under Democratic control). Because of the broadcast rights implicated by the merger, it will need Federal Communications Commission approval. As we have seen in the extortionate lawsuits and executive orders against law firms, other perceived political enemies, and universities, the Trump MO is to leverage the power of government to pressure his targets to settle, no matter how legally colorable or frivolous the allegation. That’s what lawfare is all about — and, of course, was all about when Democrats gleefully waged it against Trump. (Have I mentioned that he hasn’t forgotten?)
That’s reality. But note: Criminal prosecution is not, as we veterans of the system like to brag, “a search for truth” — for reality. A criminal trial is, to the contrary, a rigorous testing of the government’s evidence, under circumstances where the crucible is rigged in the defendant’s favor: Prosecutors bear the high burden of proof beyond a reasonable doubt (not a mere “preponderance of the evidence” as in civil cases), and the accused is presumed innocent, which means defendants are supposed to get most of the close calls.
If Paramount executives were criminally charged, prosecutors would have to show a quid pro quo and corrupt intent beyond a reasonable doubt. As the WSJ’s news pages report, Paramount appears to have taken all the internal corporate steps a good general counsel would recommend to wall the Trump lawsuit off from the merger talks. Moreover, for Paramount, $16 million is chump change: The company is in a strong position to argue that paying a comparatively cheap settlement with no apology (after Trump opened by demanding $100 million and an apology) was a financially responsible corporate decision. Legal fees would have skyrocketed had the case gone to trial. Plus, trials — even trials that the settling party should win on the merits — are a crapshoot. Ergo, the WSJ notes, Paramount executives are already telling shareholders that companies often settle to avoid “the high and somewhat unpredictable cost of legal defense”; they further stress that what Trump really wanted was an apology and the company refused to budge in declining to give one.
Am I saying that Paramount’s imperative to consummate the Skydance merger and consequent fear of a Trump-controlled DOJ and FCC didn’t drive this train? Again, of course not; I have no doubt about it. My intuition, however, does not translate into a jury conviction of Paramount execs in a hypothetical bribery prosecution. Bribery cases are very hard for prosecutors to win – see the Supreme Court’s ruling in McDonnell v. United States (2016); see also my 2023 piece on a pair of the Court’s political corruption decisions that term. They are pretty much impossible to win when the payee official settles for a pittance of what he was demanding and the paying party has a commonsense argument for settling.
According to reports, the $16 million — which mirrors what Trump pried out of Disney and ABC News, in similar circumstances, over the George Stephanopoulos kerfuffle — will not go to the president directly; it will pay his legal fees and contribute to his post-presidential library — just like the Qatari “palace in the sky”! Paramount denies the claims of Trump camp sources that it agreed to pay an eight-figure amount for Trump-approved public service announcements opposing antisemitism.
Logically, if there were a viable bribery prosecution against Paramount for paying a bribe, there should be one against Trump for taking the bribe. But a criminal prosecution against Trump would be even weaker and less likely because of the Supreme Court’s immunity ruling Trump v. United States, just about a year ago to the day. To my mind, Trump’s lawsuit against Paramount involves private conduct, but it was litigated during his presidency, it involves an allegation of media undermining of the integrity of the 2024 election, and the settlement is being touted by Trump as a White House victory for the public interest. The presumptive immunity for any acts even arguably within the wide ambit of authorized executive activity, and the happenstance that rulings against presidential immunity claims can be appealed pretrial, would tie up any bribery case in litigation for a year or two . . . after which the Justice Department, even if it won the immunity appeal, would probably lose the bribery trial. (I’m not even factoring in that Trump, by then, would be an 85-year-old twice-elected president, and Democrats would presumably remember that lawfare against Trump had cost them the 2024 election.)
Finally, if I may mount my hobbyhorse yet again, the checks against executive abuse of power in our constitutional system belong to Congress, not courts and prosecutors.
As much as Senator Wyden and his fellow lawmakers are fond of passing the buck, it is for Congress, not the courts, to stop a president from wielding executive power in extortionate ways toward unsavory ends. Unlike prosecutors and courts, Congress is not constrained by criminal due process and the jurisprudential hurdles that hamper bribery prosecutions. Congress can develop a pattern of a president’s use of lawsuits and executive orders to leverage government power for political or personal gain. It can use that as the legitimate basis for taking action — e.g., convening oversight hearings that embarrass the administration, slashing funding the president needs for his priorities, and refusing to confirm nominees. Impeachment is the DEFCON 1 of all this, and it should be resisted if it is merely a partisan exercise that lacks consensus support among the public. On the other hand, we’re less than six months into Trump’s second term and the president’s record for waging lawfare is already prodigious — even allowing that Democrats are ill-suited to complain about that tactic.
In any event, the Trump-Paramount deal is not a prosecutable bribery. If Senator Wyden and his colleagues are upset, they should be exploring the powerful arsenal the Framers vested in them rather than urging prosecutors to indict hopeless cases.