Can &quot;positive news coverage&quot; be considered a &quot;thing of value&quot; in a bribery case? Has it ever been prosecuted in the US before? Israeli Prime Minister Benjamin Netanyahu is facing several corruption charges. It's a complex, multi-faceted case, but at the heart of the indictment, is a bribery charge involving "positive news coverage" in exchange for lucrative regulatory concessions. The indictment purports that Netanyahu offered Shaul Elovitch, a wealthy Israeli businessman, regulatory concessions for his telecom company worth 500 million dollars in exchange for "positive news coverage" from Elovitch's other media companies. However, members of Netanyahu's government blasted Israel's Attorney General for bringing forth bribery charges that they call "impossible" and "unprecedented in the history of western democracy." They claim that "positive news coverage" can't be considered a "thing of value" and has never been brought forth as such in the US or other similar legal systems. Is that an accurate assessment? If the Israeli prosecution can show that said "positive news coverage" was systemic, far-reaching, and out of character for the media companies involved, can that constitute "a thing of value" even though no money was actually exchanged? The prosecution will claim as part of their case that Netanyahu is obsessed with his image in the media and that in 2020, "positive media coverage" can and does amount to a "thing of value." Has such a case ever been prosecuted in the U.S. or any other western democracy?
Can “positive news coverage” be considered a “thing of value” in a bribery case? Yes. Note that a narrow, specific holding that "positive news coverage" is a thing of value is unnecessary because it is implied by the general notion of thing of value as reflected in US case law. Several [U.S.] court opinions, such as U.S. v. Hernandez, 795 F.3d 1159, 1164-5 (2015), cite the following from the U.S. Sentencing Guidelines from year 2010: Thing of value means anything of valuable consideration. For example, in a case involving the bartering of child pornographic material, the thing of value is the child pornographic material received in exchange for other child pornographic material bartered in consideration for the material received. (emphasis added) A subsequent version of the USSG incorporated the notion of "agreed [...] exchange [...] for the specific purpose of obtaining something of valuable consideration from that other person". See U.S. v. Hoppy, (U.S. Dist., M.D. Pennsylvania, Mar. 2018) (emphasis added). Apropos of your remark ("My question is mainly focused on trying to understand how "thing of value" is defined in the US and other western democracies"), Mulhall v. Unite Here Local 355, 667 F.3d 1211, 1215 (2012) identifies what element renders something a "thing of value": The Second Circuit commented on the scope of the phrase "thing of value" when it explained that "[v]alue is usually set by the desire to have the `thing' and depends upon the individual and the circumstances." United States v. Roth, 333 F.2d 450, 453 (2d Cir.1964) [...]. It recommended that common sense should inform determinations of whether an improper benefit has been conferred. (quotation marks in original, emphasis added) In the context of your question, Netanyahu's alleged offer to Elovitch reflects Netanhayu's desire to have the positive news coverage. That desire is precisely what gives that "positive news coverage" the status of thing of value, at least under the circumstances you describe. Consequently, in light of the Mulhall opinion, it seems inaccurate and unavailing for Netanyahu's government to portray as "impossible" that the positive news coverage be treated as thing of value in the alleged offer. Additionally, see People v. Campos, 351 P.3d 553, 556 (2016) ("The primary purpose of obtaining employment is to receive the financial benefit of payment for labor performed"). It is clear that a politician's purpose of positive news coverage is to be elected for, appointed to, or remain in, public office. Thus, the motive for procuring positive news coverage [in exchange for lucrative regulatory concessions] easily translates to that politician's pursuit of a financial benefit that results from being in public office. Netanyahu's alleged offer fits the meaning of quid pro quo, which in turn is material for a finding of bribery. U.S. v. Kemp, 500 F.3d 257, 281 (2007) reads: The Supreme Court has explained, in interpreting the federal bribery and gratuity statute, 18 U.S.C. § 201, that bribery requires a quid pro quo, which includes an "intent to influence' an official act orto be influenced' in an official act." And the U.S. v.v Jennings, 160 F.3d 1006, 1014 (4th. Cir. 1998) reads: The quid pro quo requirement is satisfied so long as the evidence shows a "course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor. (internal quotation omitted) Has it ever been prosecuted in the US before? Briberies involving a thing of value have been prosecuted in the US, although there appear to be no rulings where the thing of value in a prosecution consisted of --or was explicitly said to consist of-- "positive news coverage". That being said, it seems unclear and doubtful how the accused party(-ies) in your question could legitimately overcome the notions from US case law and construe the alleged consideration (i.e., the sought coverage) as "not a thing of value".
In Uzuegbunam v. Preczewski (2021), the US Supreme Court addressed a case that sought one dollar in nominal damages. I'm assuming you mean only claims involving money damages as a remedy, because there are many claims every year involving no literal money damages and the remedy sought is some other kind of relief (although such relief would still have practical or economic value).
Saying "they didn't have an affair", in isolation, would not be defamation. But we have to look at the context. Daniels had previously stated publicly that they did have an affair. So when Cohen said that it wasn't true, he was (claims Daniels) effectively calling her a liar. Calling someone a liar is potentially defamatory. You can read Daniels's complaint here. See paragraph 67: Both on its face, and because of the facts and circumstances known to persons who read or heard the statement, it was reasonably understood Mr. Cohen meant to convey that Ms. Clifford is a liar, someone who should not be trusted, and that her claims about her relationship with Mr. Trump is 'something [that] isn't true.' Mr. Cohen's statement exposed Mr. [sic] Clifford to hatred, contempt, ridicule, and shame, and discouraged others from associating or dealing with her. As to whether calling someone a liar is defamatory, there's a long article on the subject here. There are at least some cases where courts have held that it is. Gutterman, Roy S. "Liar! Liar? The Defamatory Impact of 'Liar' in the Modern World." Fordham Intellectual Property, Media and Entertainment Law Journal 27 (2) 253-286, 2017.
Where the President explicitly tells a newspaper that they should reveal their sources. Is this not illegal in the US? It is not illegal. Well, it would be a U.S. Attorney, rather than the President himself. You're thinking of shield laws, but no such law exists at the federal level. Moreover, although some people might think that the First Amendment ("freedom of the press") would protect a journalist in such a case, the Supreme Court has held that it doesn't, though the government is required to "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest". So if a reporter were subpoenaed in federal court to reveal a source, and they couldn't convince a court to quash the subpoena under the Branzburg test, they'd have to either reveal their source or be held in contempt. In practice, many reporters have chosen the latter, and served time in jail rather than reveal the source. For instance, Judith Miller. There've been a number of proposals to create such a federal law, but so far Congress hasn't seen fit to do it. According to the Wikipedia article, every state except Wyoming has some sort of shield protection for journalists, either in statute or case law, though the protections are not necessarily absolute. So a state court or prosecutor would find it much more difficult to enforce such an order.
There are four criteria used today in the United States: The statement was false, but was claimed as true. The statement must have been made to a third, previously uninvolved party. The statement must have been made by the accused party. The statement caused harm. The first (and very important) criterion was discussed in New York Times v. Sullivan, where it was ruled that A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves &quot;actual malice&quot; -- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. Pp. 265-292. (c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless &quot;actual malice&quot; -- knowledge that statements are false or in reckless disregard of the truth -- is alleged and proved. Pp. 279-283. Quoting Wikipedia and Justice Black, The Court held that a public official suing for defamation must prove that the statement in question was made with actual malice. In this context, the phrase refers to knowledge or reckless lack of investigation, rather than its ordinary meaning of malicious intent. In his concurring opinion, Justice Black explained that &quot;'[m]alice,' even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.&quot; New York Times v. Sullivan is regarded as one of the most - of not the most - important defamation cases of the century. It was argued in 1964. If the case you discuss - which I haven't been able to find - occurred after to the ruling, then it could have been dismissed, because A did not intend it as malicious in the sense of defamation (and did not claim it was true), though it was almost certainly meant as an insult. Had this case occurred prior to New York Times v. Sullivan, things might have been different. Non-public officials Things are different for private officials. Those who are not classified as public figures are considered private figures. To support a claim for defamation, in most states a private figure need only show negligence by the publisher, a much lower standard than &quot;actual malice.&quot; Some states, however, impose a higher standard on private figures, especially if the statement concerns a matter of public importance. You should review your state's specific law in the State Law: Defamation section of this guide for more information. Note: There are differences between defamation, libel, and slander; a quick overview is given here: &quot;Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.&quot;
The constitutional provision quoted in the question has been interpreted to require that a jury trial be available to a person accused of crime by the US Federal Government. Then accused is free to waive this right, and be tried by a judge only if s/he so chooses. The accuse is also free to waive the right to a trial altogether, and plead guilty (or &quot;no contest&quot; which waives a trail without an admission of guilt). The provision could reasonably be interpreted to require that if there is a trial, it be by jury. But I don't see how it could reasonably be read to require trials in all cases, and forbid guilty pleas.
On the contrary, it is unethical for a prosecutor to bring a case where there is no reasonable prospect of conviction. The prosecutor is an officer of the court and as a representative of the state, their primary concern is the guilty are convicted and the not guilty are not.
This negotiation tactic is not a crime, but it does implicate an ethical rule for attorneys, Rule of Professional Conduct 4.5, which exists in some states, but has been dropped from the national model rules promulgated by the American Bar Association and is a controversial matter from state to state with several variant forms in different states. In Colorado, the relevant rule of professional conduct for lawyers (Rule 4.5 Threatening Prosecution) states: (a) A lawyer shall not threaten criminal, administrative or disciplinary charges to obtain an advantage in a civil matter nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter. (b) It shall not be a violation of Rule 4.5 for a lawyer to notify another person in a civil matter that the lawyer reasonably believes that the other's conduct may violate criminal, administrative or disciplinary rules or statutes. The concern about the statement in the question is that mentioning that certain allegations would be put in a publicly filed complaint is an implicit threat to expose criminal acts of the other party if the other party doesn't cooperate, but to refrain from doing so if the other party cooperates. This violates Rule of Professional Conduct 4.5(a) above, and goes beyond Rule 4.5(b) above which states that it is not improper to simply tell someone that it may have been illegal and a crime to do the things that he did. The critical distinction is the implied promise not to disclose these crimes publicly if the other party cooperates by not filing the proposed complaint. Under Rule 4.5, a lawyer can tell someone that certain conduct is probably illegal, and can unilaterally report illegal conduct, but can't hold open the possibility of not reporting illegal conduct to gain a civil advantage. The theory is that it is contrary to public policy for a lawyer to put himself or his client in a position where he is promising to help cover up a crime or other violation of the law. This is controversial, and is not adopted in all states, because it makes some very subtle distinctions that often hinge on strongly implied concepts, and that it provides benefit when applied in many cases to someone who has broken the law, instead of making their violation of the law something that makes them worse off in civil cases as well as in other contexts. There is not a counterpart to Colorado Rule of Professional Conduct 4.5 in the Rules of Professional Conduct of New York State, New Jersey, or Florida. So, to the extent that this conduct is subject to ethical rules in any of these states, it would only be indirectly through, for example, through Rule of Professional Conduct 8.4 in each of these states, which is a general catch all clause prohibiting lawyers from committing culpable crimes or that is dishonest or that is prejudicial to the administration of justice. Rule 8.4 is the counterpart for lawyers of the substantive offense in military justice that a military officer has failed to comport himself as an officer and a gentleman. The history of the decision to remove an express prohibition on threatening prosecution from the ethical rules for lawyers is explained in a 2008 ABA article that also discusses how liability might arise under Rule 8.4. In general, there is nothing wrong with making threats in a negotiation. Often that is precisely what negotiations are about. What is (arguably) wrong is making criminal, administrative or disciplinary charge threats in a civil lawsuit to gain advantage in a civil lawsuit. A prosecutor is perfectly free to make those threats in a criminal case, for example. Similarly, it is perfectly acceptable to make a threat of civil legal action, such as filing a lawsuit, in a civil matter, so long as it doesn't imply a threat to bring criminal, administrative or disciplinary charges if the other side doesn't cooperate. Whether it is proper for an attorney to do this depends heavily upon the state in which this negotiation is taking place, which is not identified in the question.