Under New York and DC law, a defendant needs to threaten the target of his blackmail or otherwise instill fear in that person that some bad consequence will follow if the demands are not met. But to understand whether or not there was such a threat being made, more would have to be known about the context of the language used and the intent of the speaker — did the alleged Trump associate seem serious, for example, or was it instead simply an offhand remark or joke?
Additionally, Crespo said, New York and DC law require that the threat be to expose “a secret” that would subject the target “to hatred, contempt, or ridicule.” However, whether the facts here constitute a secret could depend on how commonly it already was known that Scarborough and Brzezinski had been dating at a specific time. Even if a secret, there would have to be a greater understanding of how the secret was viewed — was it damaging in a sense that it could fairly be considered to cause harm to their reputations? (He noted that at least one New York court opinion suggests that threatening to expose an affair could count under that statute.)