Unlike most politicians, Donald Trump is fighting back against those looking to tarnish his name.Weeks ago his campaign was rocked when audio was leaked including sexually explicit comments he made back in 2005. Not long-after, a number of women came forward alleging sexual misconduct on behalf of The Donald. “Every woman lied when they came forward to hurt my campaign,” Trump said last week in response. “Total fabrication. The events never happened. Never. All of these liars will be sued after the election is over.”
They’re not the only ones Trump plans on suing after the election.
As LawNewz reported: Did Trump know he was being recorded? Apparently not. On Thursday night, he told Bill O’Reilly that the mic was not supposed to be on and that it was an “illegal act.” He even hinted he may sue. And he’s right, a hot mic can be a criminal act in California, and NBC could potentially be liable. California Penal Code 632 criminalizes any person who “without the consent of all parties” records their conversations. California Penal Code 637.2 specifically authorizes the right of the person whose privacy was invaded to bring a civil suit, with an incredible treble damages provision for RICO-style punishment. That converts, say a $1 billion claim into $3 billion of damages. A hot mic can still be an illegal recording if the parties to the conversation thought the mic was not active and not recording.
Does the First Amendment help NBC? The First Amendment protects publishing, not illegal recording. NBC would not even have a sure-fire First Amendment defense for publishing. The First Amendment is not owned by big media; the media cannot easily use it to violate another’s First Amendment rights to unrecorded private speech.As the critical concurrence by Justice Breyer (joined by Justice O’Connor, and essential to any majority outcome in the case), in their decision made clear in Bartnicki (a “narrow holding limited to the special circumstances present,”) that the publisher’s defense depended upon the fact the publisher “neither encouraged nor participated directly or indirectly in the interception” of the conversation. That’s how tough the law treats these kind of these illegal recordings. And there is precedence for such criminal prosecutions as well, even in high profile cases involving sex allegations and the Presidency: ask Linda Tripp, of Lewinsky fame, who was indicted by a Maryland prosecutor for illegally recording Lewinsky’s conversations.
Watch Trump’s appearance on O’Reilly below:
Now, some liberals reading this might be thinking right about now: so what? Who cares if the audio was obtained illegally, as that doesn’t mean Trump didn’t make the comments we know he did. And to that I’d respond: certainly, but that’s the same exact defense Hillary Clinton has given when it’s come to the revelations from Wikileaks. Hillary seems to be under the impression that the truth ceases to be truth once uncovered by (supposedly) Russian hackers.
Both were exposed to some extent. At least Trump has no chance of going to jail over it.
[Note: This post was written by The Analytical Economist]