Donald Trump has categorically denied the veracity of the intelligence dossier BuzzFeed News published on Tuesday which detailed allegations of various compromising material (“kompromat”) that Russia supposedly has on him. In his Wednesday morning press conference he said, “It’s all fake news. It’s phony stuff. It didn’t happen.” He attributed the report to “a group of opponents that got together — sick people — [and] put that crap together.” Though Trump has a history of both bending and flat-out breaking the truth, the contents of the report are unsubstantiated and for now the burden of proof falls on Trump’s doubters.
Though the intel comes from Christopher Steele, who is a lauded former MI-6 agent, there are plenty of reasons to doubt some to all of the information. Top newspapers and United States government officials have had access to the dossier for months and have been unable to verify its contents; certain statements in the report, such as those alleging a late-summer meeting in Prague between a Trump lawyer named Michael Cohen and a Russian official named Oleg Solodukhin, have been denied by the participants (Cohen denies having ever been to Prague). Trump, referencing one of the more lurid claims in the dossier, reminded the public that he is a “germaphobe.”
While it would be difficult to prove every detail of the report, it would be simple to prove its most salacious component, which, as you’ve probably learned by now, allegedly involves Trump and Russian prostitutes in a hotel room, if it indeed did happen. A media organization would merely need to get hold of the tape that supposedly exists and publish it online.
Both of those steps, of course, are easier said than done. In the Internet age, scandalous sex tapes rarely stay secret long; that this one has cast doubt on its existence. On the other hand, now that the rumor of the tape has surfaced, the search has escalated. “Hustler,” for instance, offered a $1 million bounty for the tape. You can bet that every two-bit hacker’s reaction to that news was “Challenge accepted!”
If “Hustler” or even a more venerable media organization does acquire the tape, it will raise a whole other set of questions, though, of liability and the law. Donald Trump is known among other things, for his wealth and his litigiousness (he has been involved in more than 4,000 lawsuits in the past three decades). In the post-Bollea v. Gawker world, would a media organization have legal reason to be worried about publishing such a tape?
The answer is probably not, with a few caveats.
Public figures in the United States have fewer rights to privacy than the average citizen, and the president (or president-elect) has even fewer. In 1960, William Prosser published a paper called “Privacy” in the California Law Review, and it has since shaped privacy law. In it Prosser writes, “Very probably there is some rough proportion to be looked for, between the importance of the public figure or the man in the news, and of the occasion for the public interest in him, and the nature of the private facts revealed. Perhaps there is very little in the way of information about the President of the United States, or any candidate for that high office, that is not a matter of legitimate public concern.”
While a sex tape of, say, Donald Trump and Melania Trump having sex before they were married might not clear that bar, a tape that showed Trump with prostitutes and which made him vulnerable to blackmail surely would.
Jane Kirtley, a professor of media ethics and law at the University of Minnesota, says there's a difference between such a hypothetical Trump case and the case Hulk Hogan brought against Gawker.
“Here we're talking, arguably, about compromising video that could be used for blackmail, extortion and other purposes by the Russians or other foreign powers, that has implications for the president-elect's power to govern," said Kirtley. "To me, there is really no question of the newsworthiness of this and that it would override any legitimate privacy interest that might arise.”
Kirtley, though, saw three potential problems a media organization could run into if they published the hypothetical tape. The first is that the media organization could not have had a hand in the making of the video, by either instigating it or encouraging someone to participate in it. The second is specific to a broadcast media company, which might face issues from the FCC for broadcasting such a tape.
“Because one of the definitions of broadcast indecency is depicting not just sexual but excretory functions, if urination is being depicted [on the tape], that falls under the broad definition of indecency under the FCC rules,” Kirtley said. “But again, I think the newsworthiness of this would, in my view, override it.”
And lastly, if Trump was somehow able to prove that a released video was a fabrication and that the media organization that published the video had reason to know that it was not authenticated, “that would be an argument that [Trump] would not definitely lose.”
Though Trump likely would not be able to get legal vengeance on a media company if it released such a tape, which is only rumored to exist, he also likely wouldn’t suffer any legal repercussions himself. The U.S. Constitution gives grounds for impeachment on the basis of gross misdemeanors and treason. But in practice, impeachment is usually a partisan act.
“If you look at the history of impeachment, it has been selective,” said Lawrence Jacobs, director of the Center for the Study of Politics and Governance in the University of Minnesota's Hubert H. Humphrey School. “It’s very hard to imagine a Republican Congress would ever impeach and then convict a Republican president. If a highly damaging video were to come out about Donald Trump, I’m not sure that would be enough. You would literally have to find Donald Trump engaged in sedition, actively undermining the United States, to see a Republican Congress in today's times vote to impeach and then convict. So I put the probability to be extremely low, assuming that the video would actually emerge, which I'm doubtful about.”
So, what we’d probably be left with is a few more Republicans renouncing their support for Donald Trump, Trump losing a marginal amount of public popularity, and the given media organization being punished by Trump in a similar way that he punished CNN and BuzzFeed on Wednesday: He would call them names and refuse to answer their questions. In other words, nothing that will necessitate liberals — or conservatives, for that matter — changing into a clean pair of pants.