Friday, April 01, 2016

Was the Bernie Sanders Sex Tape a False Flag Operation?

by Michael Dorf

In a presidential primary campaign season dominated by the unlikely rise and even unlikelier failure (thus far) to fall of Donald Trump, things got even weirder yesterday when Bernie Sanders broke the internet. After initially refusing to comment on rumors that a nearly thirty-year-old video of a maple-syrup-themed Vermont orgy (warning: NSFW) included scenes of a younger-but-already-gray-and-balding Bernie Sanders in flagrante delicto, Sanders campaign manager Jeff Weaver reluctantly acknowledged that the man dressed only in mid-calf brown socks and a baseball cap bearing the words "Burlington Bernie" was "probably" Sanders. Weaver then attempted to turn the conversation back to the political revolution against corporate greed, but to no avail. The uncomfortable questions continued for, by my count, over fourteen excruciating minutes.

Weird and creepy, right? Yes, but it only got weirder. Shortly after Weaver's presser ended, @realDonaldTrump tweeted:
Sander's [sic] people released that video themselves to "pump up" his numbers. Democrat party is real desperate. They're all LOSERS. 
And that's still not the weirdest part. No, it turns out that . . . wait for it . . . Trump appears to be right.

A Huffington Post story yesterday reported a disgruntled anonymous source inside the Sanders campaign who more or less confirmed Trump's tweet. As was reported first in the Washington Post, shortly after the dustup between Trump and "Little Marco" Rubio over the size of Trump's, uh, fingers, First Amendment hero Larry Flynt announced a one-million-dollar reward to anyone who could produce "visual evidence of the size of Trump's penis." When no one came forward, Flynt offered the same reward for similar evidence "regarding any of the other male candidates."

After Flynt's offer, the Sanders campaign received an email with an attached .mpv file of the 1987 Burlington, Vermont orgy. According to the source quoted in the HuffPo story, the sender threatened that if the Sanders campaign did not match Flynt's offer, the video would be sold to Flynt. The threat was deemed sufficiently important that it was escalated to a meeting of Sanders and his top aides. Sanders was livid, shouting at one point: "This is what these billionaire sleazeballs try to do. I will not be blackmailed. I cannot be blackmailed."

When Sanders left the room to record a campaign commercial, his staff assumed that he had decided to ignore the threat. They braced for Flynt's release of the video, but a week went by and nothing happened. After another week, Sanders reportedly asked why the sex tape had not yet "gone bacterial." (He apparently meant "viral.") As reported yesterday on one gossipy blog, "it was pretty clear that Bernie wanted the video out there." And so the staff obliged. Just like Trump said, Sanders's own people released the video in the hope that it would further energize his base of young voters.

But if so, the move may have been a miscalculation. Although Sanders might like the idea of millions of viewers gawking at his thirty-years-younger body, the other people pictured in the video could have an invasion-of-privacy suit against the Sanders campaign. None of them signed a release or otherwise consented. Thus, according to torts scholar John Goldberg, "there were at least a dozen people in that video whose identities can easily be ascertained. That's potentially twelve Hulks Hogan." Kudos to Prof. Goldberg on his proper pluralization of the former fake wrestler's fake name, but how can Sanders possibly pay such a yuge judgment?

On CNN, Wolf Blitzer suggested that Sanders could pay any judgment from his campaign war chest. But even assuming Sanders has stockpiled a sufficient number of vacuum pennies for such a transfer, it would be illegal. At least so writes election law expert Rick Hasen. Pointing to a recent DC Circuit ruling authored by seemingly-doomed SCOTUS nominee Merrick Garland, Prof. Hasen explains that using campaign funds for personal purposes is illegal "conversion."

But other election law fetishists are not so sure. NYU law professor Sam Issacharoff told Politico that unlike former Senator Larry "Wide Stance" Craig--the protagonist of the recent DC Circuit case--"Sanders could plausibly argue that the liability to the other orgyists was campaign-related because he released the video to help his election bid."

Will it help? If you'd asked me last summer whether grainy porn of a self-professed socialist would help his White House bid, I would have laughed. But what do I know? I also would have assumed that Donald Trump's presidential campaign was simply a publicity stunt or a prank.


Shag from Brookline said...

Was this an example of a tree-hugging environmentalist or " ... a maple-syrup-themed Vermont orgy ..."? Word on the street is that Bernie considered engaging constitutional lawyer Alan Dershowitz to represent him until Bernie was made aware of The Dersh's own problems that Mike posted on exactly one year ago. Might Joyce Kilmer's "Trees" be an affirmative defense to such an "orgy"?

Joe said...

is it April ALREADY?

KW said...

Professor Dorf wins the Internet today.

Shag from Brookline said...

But Larry Solum competes at the Legal Theory Blog with a three-fer.

Query: Did George Mason Law School prematurely celebrate April Fools with its name change announcement to "Clarence Thomas Law School"? It could have chosen "Roger B. Taney Law School" as more historically connected.

Unknown said...

Also, I really liked your work in Star Trek: Next Generation. It's really hard to convincingly play a Klingon, and you nailed it.

Shag from Brookline said...

Larry Solum has added 4 more posts, a total of 7 so far, on academics (legal, historian), none of whom is an originalist. Is April Fools Day payback time? Or does this demonstrate Larry's "Addiction" article? Maybe Randy Barnett and Jack Balkin should call for an intervention by New Originalists. [Originalism Blog, please note.]

Shag from Brookline said...

Here's an excerpt from Larry Solum's "Addiction" article:

"How is the fixation thesis applied when the New Originalism's construction kicks in? Some take the view that construction is addressed currently as it would be difficult determining construction under the fixation thesis. POPPYCOCK!"