Investigations, privileges, and Bannon’s gamble on contempt

On Tuesday, former White House chief strategist Steve Bannon refused to answer questions from the House Intelligence Committee concerning his time in the Trump transition and on the President’s staff.  He was immediately subpoenaed, and required to appear again yesterday.  As Politico reports here, he communicated to the Committee that its demand was unreasonable.  He further indicated that he would be working with the White House to determine whether it would be asserting executive privilege to prevent him from testifying.  Chief of Staff John Kelly indicated on Wednesday, however, that the White House had not asserted executive privilege on Bannon’s behalf, contradicting some earlier understandings.  See The Hill report here.

If Kelly is right, then Bannon’s action fits a pattern of witnesses in the congressional Russia investigations simply choosing, on their own, when they will answer questions and when they will not, with no apparent consequences.

Several problems emerge from this saga.

1.  Bannon cannot assert executive privilege.  Only the President can.  Bannon’s apparent assertion Tuesday (if Kelly was right) and again yesterday, is based on what I call preemptive executive privilege.  This is when a witness hypothesizes that an answer might possibly implicate executive privilege, even though it has not been invoked, so the witness will preemptively refuse to answer based on the future possibility of a presidential invocation.  This is problematic, and Congress should put a stop to it.  Unless there is a clear basis for a legitimate assertion of the privilege—in which case there is an argument that Congress should be sensitive to the President’s constitutional prerogatives—Congress should demand that the witness answer or, if not already under subpoena, be subpoenaed and then held in contempt for any refusal to comply.  In most cases, Congress’s prerogatives will outweigh these preemptive assertions.

2.  Bannon was also issued a subpoena to testify before the grand jury in the Special Counsel’s criminal probe, though apparently he is now being allowed to meet with federal prosecutors outside of the grand jury environment.  Bannon is reportedly saying that he will tell the Special Counsel “everything,” (see Daily Beast coverage here) though he apparently believes he does not have to answer to Congress (yet).  Bannon may be relying on an oft-heard claim about executive privilege and its basis in the separation of powers—it can be invoked against Congress but not in a probe within the executive branch.

This view misapprehends the privilege as it applies (to the extent that it does) before Congress.  First, it is wrong to suggest that the mere invocation of the privilege in a congressional investigation is per se adequate to enforce it.  While it is true that executive privilege has its foundations in the separation of powers, it is not true that any invocation of it in the courts or before Congress is necessarily effective.  The Supreme Court has never held that a congressional investigation must yield to a claim of executive privilege, and there is precedent for the opposite conclusion.  See, e.g., House Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008).  Of course, usually these kinds of disputes are resolved through accommodation, and that may well happen here.  Perhaps it should. But Congress could seek enforcement of the Bannon subpoena even if there is an invocation of the privilege.

My guess is that Bannon is betting against that.  Bannon clearly knows that he cannot avoid the Special Counsel through a claim of executive privilege, see United States v. Nixon, and yet I would imagine that Bannon is counting on Congress not seeking enforcement of the subpoena.  He has ample reason to bet on that, given this Congress’s lax enforcement of its prerogatives with other witnesses.  Or perhaps he is ultimately counting on a process of accommodation.  So, assuming arguendo that there is an invocation of the privilege on which Bannon could theoretically rely, the question is whether Congress will have the institutional backbone to enforce it, and call Bannon’s bluff.  (On the other hand, if the White House refuses to assert the privilege, perhaps Bannon will comply; or perhaps he will continue to resist and simply gamble on non-enforcement).

3.  Bannon refused to answer Tuesday and was subpoenaed.  On the spot.  And yet other witnesses from the Trump campaign have refused to answer questions and were not subjected to a subpoena.

In particular, consider that Donald Trump Jr. recently appeared before the Committee and refused to answer questions about his discussions with his father, raising a bizarre claim of attorney-client privilege (which has been largely debunked, see here).  Even if the assertion was legitimate, the attorney-client privilege, unlike executive privilege, is not a constitutionally-based privilege, and Congress could simply rule that the privilege should yield to the need for disclosure of the information it seeks.  If that is the case, then why did Trump Jr. not receive a subpoena?  Why has the Committee not compelled him, and others who have balked at answering certain questions, to appear again before the Committee and give the requested information or be subject to a contempt prosecution (as, apparently, is now being contemplated for Bannon)?

Investigative power is meaningless unless Congress is willing to compel testimony and punish non-compliance; otherwise, witnesses have no incentive to play ball with Congress.  The contempt power is one of the most important tools available to Congress.  And recent history shows that congressional Republicans know how to use it (ask Lois Lerner and Eric Holder).

If a Republican Congress can hold Lois Lerner in contempt for refusing to give testimony after a bungled assertion of the Fifth Amendment privilege (a constitutional privilege, and one that was later validated by the DOJ), then surely it can demand answers after an absurd assertion of the attorney-client privilege or a wholly preemptive assertion of executive privilege that probably doesn’t apply anyway.  If, like me, you think that it is critical that Congress investigate Russian active measures and take legislative steps to thwart further Russian influence, then it seems clear that Congress needs full information about Russia’s activities in 2016.  These witnesses may have important and useful information, and they should be required to give it, in aid of the legislative function.

The failure to insist upon important information from witnesses during a critical investigation offers yet another example of the damage that can be done to constitutional government when legislators become slaves to party loyalty and/or the president of their party.  Republicans in Congress must have a fuller appreciation for their role in the separation of powers and their institutional prerogatives (Democrats had the same problem during the last Administration).  They seem to have finally awoken to this notion when dealing with Steve Bannon.  But will they hold his feet to the fire?  And if so, what about the others who have simply taken a pass on cooperating?

 

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Saipov and the federal death penalty

The Government has filed a formal criminal complaint in the case of Sayfullo Saipov, who allegedly killed eight people and injured about a dozen more on Halloween by driving his truck through a bike lane in New York City.  Although this is not an indictment, and the indictment could include additional statutory violations, the complaint focuses on one of the material support for terrorism statutes (18 U.S.C. 2339B) and the motor vehicles statute (18 U.S.C. 33).  Interestingly, the complaint also alleges a violation of section 34.  That is critical, because although the material support statutes do not provide for the death penalty, section 34 explicitly does, and here the violation of section 33 resulted in the death of a person.

Based on this, and what will almost surely appear in a future indictment, there seems to be a very high probability that the Government will seek the death penalty against Saipov.  In fact, now, I would say that it is almost certain.

Yesterday, the President tweeted that Saipov “SHOULD GET THE DEATH PENALTY.”  The President then tweeted again today about Saipov’s case, “Should move fast. DEATH PENALTY!”  (Politico has analysis here).  That is a sentiment shared by many, and under ordinary circumstances, it would be an unremarkable assertion in a terrorism case involving so many killings.  The problem, however, is that the President is not supposed to be the guy at the end of the bar.  The President oversees the federal prosecutorial infrastructure and the very people who must make the decision of whether to seek the death penalty against Saipov.  Why is that a problem?  Here is why, and it’s different than the concerns others have raised.

The federal death penalty is (or, at least should be) a point of pride for the Justice Department.  It is not used often, but when it is used, it tends to be reserved for truly heinous and highly aggravated killings.  And the Saipov case, based on what is currently known, looks to fit that bill.  Moreover, the federal death penalty provides substantial process to ensure that the decision whether to seek the death penalty is fair and objective, based on a variety of relevant factors.  Federal capital defendants receive learned counsel, and per the DOJ’s death penalty protocol, they have the opportunity to make a presentation (through counsel) to DOJ officials who review the United States Attorney’s submission of the case.  The process is not rushed, nor is it arbitrary.  Some cases, though death-eligible, may not be sufficiently aggravated to warrant a decision to seek; and even in a highly aggravated case, the Attorney General may decide not to seek because of substantial mitigating evidence, including mental state evidence.  The Department goes to great lengths to ensure that the threshold seek/no seek decision is deliberate, informed, and fair.

By stating his insistence upon a death penalty for Saipov, however, the President may be sending a signal to General Sessions that Sessions must authorize a capital prosecution, regardless of the mitigating evidence (if any).  Now, it is likely that Sessions would be inclined to seek in this case anyway, and from all public accounts of the alleged offense, it would seem to fit the mold of a federal death penalty case — highly aggravated, implicating national government interests, with minimal persuasive mitigation.  But the whole point of the protocol review process is to vet the case and determine whether the death penalty is appropriate, in light of the facts and circumstances of the individual case.

In other words, my fear is that the President has given Sessions little room on the “no seek” side of the decision-making process.  This is particularly true for Sessions, who has been publicly humiliated by the President in recent months and who functions in a world where public disagreement with — indeed, failure to worship — the President is treated as a great sin.  One might reasonably ask whether Sessions feels that he is in any position to take a different side from the President on anything.

My even greater fear is that Saipov’s lawyers will challenge the fairness and legitimacy of the review process by claiming that the fix was in and that once the President tweeted, Saipov never stood a real chance of avoiding the death penalty because the Attorney General’s hands were politically tied.  While capital defendants ordinarily do not challenge the process by which the seek decision was made, I am concerned that the President may be inviting new litigation about that process.  That is unfortunate, and unfair to the career prosecutors, as well as political appointees at Justice, acting in good faith to apply the protocol and make sound decisions in very ugly, and often complex, cases.  It is especially unfortunate in a case where the President’s sentiment was wholly unnecessary — the Attorney General may already have been inclined to favor the death penalty without prompting by the President.

I don’t want to overstate the concern.  Perhaps the President’s tweets will not matter in the Saipov case, and perhaps the legitimacy of the decision-making process will not be challenged.  After all, as I have said, it is not as if this would be a weak case for the death penalty in the absence of the President’s tweets.  Still, the President’s tweets — however satisfying to his political base — could be perceived as influencing the Justice Department’s ability give the case an objective review, and have the effect of compromising the integrity of a process that is designed to be serious, sober, thorough, and independent.  In death penalty decision-making, those are virtues more important than speed.

Given the pressures facing the death penalty in America, it is critical that the federal system be perceived as fair and just, rather than merely efficient or fast.  For those of us trying to preserve the death penalty, and its image in American law and politics, the President is making things much harder.

 

“Vacationland for lawyers in love”

Last night I watched the news from Washington (the capital),

The Russians escaped while we weren’t watching them (like Russians will).

Now we’ve got all this room,

We’ve even got the moon.

And I hear the USSR will be open soon

As Vacationland for

Lawyers in love.

— Jackson Browne, “Lawyers in Love (from Lawyers in Love, Asylum Records, 1983).

Perhaps today’s news doesn’t precisely parallel all of the political and cultural phenomena that fueled Jackson Browne’s early 80s Cold War commentary, but, if you’re a lawyer (and you remember the Cold War), today was a fascinating day (“Among the human beings/ in their designer jeans/ am I the only one who hears the screams/ and the strangled cries of lawyers in love?”).

The indictments of Paul Manafort and Richard Gates were unsealed, alleging conspiracy, money laundering, and violations of the Foreign Agents Registration Act, among others.  The indictment is here.  Just after the President tweeted that the indictment shows there was “NO COLLUSION,” the news broke that Trump campaign national security adviser George Papadopolous pleaded guilty to making false statements to the FBI when interviewed in connection with the Russian meddling investigation.  That guilty plea statement is here (via NYT).  It is riddled with references to Papadopolous’s email exchanges with individuals connected to the Russian government, as well as references to other officials (some high-ranking) in the Trump campaign who apparently knew about Papadopolous’s efforts — and who did absolutely nothing to put a stop to the apparent contacts with Russian connections.

Politico has this entry with reaction from notable legal figures.  What appears clear from the views of many experts is this: the Manafort indictment is not nearly as significant as the Papadopolous guilty plea.

Much of the difficulty with this entire episode is the hyper-focus on the word “collusion.”  Somehow, somewhere, this became a term that has defined the nature of the scandal.  But why?  It has been said before but is worth reiterating: collusion is not per se a crime.

“Collusion” is a legally-neutral term; it can refer to criminal cooperation or simply to cooperation covertly or by deception.  So although collusion is typically a term used to describe a state of affairs that is bad (that is, it is not morally neutral), its use in the present context does not, without more, connote violation of some specific criminal law.  For lawyers, what we ought to mean by “collusion” in this particular context is that someone in the Trump orbit, and more specifically in the campaign, formed an agreement to cooperate with, or to develop a relationship with, the Russian government or individuals connected to high-ranking Russian government officials for the purpose of assisting Trump in defeating Hillary Clinton.  That may nor may not be a crime, but it would seem to fit a proper understanding of “collusion.”

The extent to which that kind of agreement or relationship is a crime will vary based on the law applicable to the facts.  Still, when one examines the Papadopolous document — and then adds the now-infamous Trump Tower meeting in June 2016 — it is hard not to conclude that at least some in the campaign were, in fact, trying to forge such an alliance.  Again, whether that is criminal is a separate question, as is the question of whether candidate Trump himself knew anything about the activities of these lower-level actors.  But to state that there is “no evidence of collusion” is to simply turn a blind eye to the obvious, once “collusion” in this context is properly understood.

So, when you hear the President or someone in the Trump orbit say “there was no collusion,” ask whether they mean there was no criminality, or whether they mean there was no intent or effort to develop a cooperative agreement with the Russians to help Trump win and to damage Clinton.

All that said, and regardless of where one stands on the merits of the ongoing investigations, there is much to be sad about today.  I very much doubt that we would be discussing any of this, or spending enormous public time and resources on this matter, were it not for the pathological need of political campaigns to absolutely destroy their opponents in the effort to win. What we see, particularly in the Papadopolous news, is the disturbing length to which political campaigns will go in America to smear, to discredit, to ruin an opponent.  It is not new, nor is it unique to the Trump campaign.  Both parties do it.  And they spend obscene amounts of time and money on it.

True, sometimes revelations about a candidate can serve a valuable purpose, where they bear on a candidate’s competence, or ability to do the job, or reveal truly bad acts about which the public ought to be informed.  But dirt-digging ventures have routinely become a substitute for substantive debate between, and about, candidates.  The danger is that national campaigns will focus not so much on the election of those who can best govern safely and effectively under the Constitution, but simply on which candidate is able to survive total annihilation.

When these are the wages of entry into electoral politics — not just defeating your opponent, but ruining them, and spending millions and millions of dollars to do so — is it any wonder that people who are good, smart, capable, and patriotic, but imperfect, do not want to run for office?  Is it any wonder that so many good people who are currently serving no longer want to be part of the system?

Perhaps the need to annihilate our opponents proceeds directly from two additional pathologies in our contemporary politics: extreme polarization and hero worship.  I shall have more to say about that soon.  For now, fortunately, we have baseball.

 

 

Federal crimes in Charlottesville

The horrific events in Charlottesville yesterday have prompted a number of important questions associated with the political and moral necessity of condemning the evils of white supremacy and political violence: why did the President fail — once more — to specifically condemn white supremacy and explicitly disavow fascist and racist supporters? Will Republicans condemn the President’s anemic and equivocal response? Should we call this domestic terrorism, and why would that matter? Those are worthy questions.

Now that one person is in custody related to the car crash that killed a 32-year-old woman, however, it is also important to begin looking at the criminal law questions, as well as the political ones. The Justice Department — after an appropriate statement of condemnation from Attorney General Sessions — announced that it has opened a civil rights investigation. It is early, and we need to await more evidence before arriving at any conclusions about charges or guilt. Still, what might the Feds be looking for?

Most likely, investigators will focus on whether there was a conspiracy to violate civil rights of anyone, including the counter-protesters, pursuant to 18 U.S.C. 241. Investigators will also likely focus on 18 U.S.C. 245, which targets actions against those engaged in certain specific federally-protected activities; whether anyone was intentionally obstructed in the free exercise of their religion, pursuant to 18 U.S.C. 247; and whether this was a violent hate crime, pursuant to 18 U.S.C. 249. These latter three charges, in particular, would require evidence that the person had acted with some specifically proscribed animus, such as racial or religious animus. With respect to the car incident specifically, because death resulted from the actions of the driver, capital punishment is available under sections 241, 245, and 247, but not section 249, if those statutes applied.

But the Feds may not need to rely solely upon civil rights enforcement statutes here.  For example, 18 U.S.C. 33 makes it a crime for any person, acting “with intent to endanger the safety of any person on board” or “with reckless disregard for the safety of human life,” to damage, disable or destroy any motor vehicle “used, operated, or employed in interstate or foreign commerce.”  Section 33 also makes it a crime to, “with like intent,” disable or incapacitate “any driver or person employed in connection with the operation or maintenance of the motor vehicle, or in any way lessen[] the ability of such person to perform his duties as such.”  The video and photographic evidence from the scene in Charlottesville strongly suggests that Section 33 is a potential avenue for prosecution, though this would also depend upon other factors, such as evidence to prove the jurisdictional element (though that should ordinarily not prove to be difficult).

Section 33 does not specifically employ capital punishment, but it need not.  Section 33 is a part of Chapter 2. This is important because Section 34 provides that the death penalty applies to anyone convicted of a crime listed in Chapter 2, where the crime has resulted in a person’s death.

Another important question that remains is whether the driver is a member of, or acted on behalf of or at the direction of or in an effort to become a member of or increase status in, some specific entity, organization or association-in-fact. If so, this could potentially implicate the racketeering laws, notably the violent crimes in aid of racketeering (VICAR) statute, 18 U.S.C. 1959.  Unlike the RICO statute (sections 1961 and 1962), VICAR provides for capital punishment.  Of course, in addition to proving the underlying conduct, the Government would need to prove that the entity met the statutory definition of a racketeering “enterprise.”

Finally, it is worth noting that any mention of capital punishment is subject to both the procedural prerequisites of 18 U.S.C. sections 3591 and 3592, as well as the DOJ’s death penalty protocol.

Virginia has proven itself more than capable of handling high-profile homicide cases.  But in recent years, we have also seen the Justice Department take the position that federal action is required when civil rights enforcement is at stake.  It will therefore be important to find out whether investigators can uncover evidence of animus, or other evidence, that would be sufficient to implicate the federal civil rights statutes in Title 18.  But even without the civil rights statutes in play, federal prosecutors still may have an avenue for federal action, depending upon what the investigation reveals.  The question would then be, as it often is, whether the Feds would be content to let Virginia handle the case alone, whether Virginia would defer to the Feds, or whether there would be dual prosecutions, in which case the Feds would have to assert a unique federal interest that would not be vindicated by the state prosecution.  If the civil rights statutes are implicated, and if prior similar cases are any guide, the chances of a federal prosecution are very high.

Hate crimes enforcement continues, but under-reporting remains a concern

Although some questioned whether Attorney General Sessions would make hate crime enforcement a priority, I speculated that — particularly in light of the nature of the federal hate crimes law, which requires proof of willfully-caused bodily injury or an attempt to cause bodily injury through the use of certain dangerous devices or weapons, see 18 U.S.C. 249 — those concerns were likely overstated and that General Sessions would continue robust hate crimes enforcement.  So far, this has proven to be the case.

General Sessions recently delivered these encouraging remarks at a national hate crime summit, in which he said “hate crimes are violent crimes.  No person should have to fear being violently attacked because of who they are, what they believe, or how they worship.”  Moreover, the Justice Department announced back in April the creation of a special hate crimes subcommittee as part of its Task Force on Crime Reduction and Public Safety.   And in recent months, the Civil Rights Division has announced several new hate crime indictments (see, e.g., here and here and here).

Still, less encouraging news came recently, regarding the under-reporting of hate crimes.  According to this new report from the Bureau of Justice Statistics, 54% of violent hate crimes were not reported.  Some media coverage here and here.  There are a variety of explanations for the under-reporting, as noted in the report.

I hope that by making hate crimes an enforcement priority, the Department can incentivize greater reporting participation and provide the public, and law enforcement partners around the country, with more accurate information about the frequency of, and risks associated with, hate crime behavior.  Any comprehensive national approach to violent crime should, as the Sessions Justice Department has thus far acknowledged, include attention to bias-motivated violence.

 

 

Extortion, deprivation of rights, and the myth of the Twitter counter-punch: Part II

In my last post, I focused on the potential civil rights issues arising from the account given by Joe Scarborough and Mika Brzezinski concerning their allegation that the President, through his staff, asked them to apologize for negative coverage and make their coverage more positive in exchange for the President using his authority to stop publication of a potentially damaging story about them in the National Enquirer.  Again, there appears to be more to this story, the President denies Joe’s account, and it is unclear as yet whose version is correct.  My previous post discussed the federal statutes that make it a crime to willfully deprive a person of his rights, 18 U.S.C. 242, and to conspire to injure, oppress, threaten, or intimidate a person in the exercise of a constitutional right, or because of his exercise of a constitutional right.  18 U.S.C. 241.  But because there has been some commentary on the potential extortion and reputational blackmail aspects of this story, I will now focus on those.

First, let’s begin with the statutes that proscribe extortion.  The Hobbs Act, 18 U.S.C. 1951, does so, but I think the Hobbs Act is problematic here.  This law makes it a crime to obstruct, delay, or affect commerce by extortion.  It further defines “extortion” in section 1951(b)(2) as the “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

The problem is that, in this case, even assuming the truth of Joe’s account, there was likely no effort to obtain “property.”  Although intangible things can be “property,” the Supreme Court held in Sekhar v. United States that “property,” for purposes of Hobbs Act extortion, must be capable of transfer from one person to another.  It must be obtainable.  The Sekhar Court also distinguished between extortion and coercion, which, the Court said, is threatening another person to do or abstain from doing something that he or she has a legal right to do or abstain from doing.  Coercion, then, need not involve transferable, obtainable property; Hobbs Act extortion does.  And the Hobbs Act does not cover mere coercion.

The other statutes that might seem directly relevant here are those in the statutory scheme involving interstate communications, 18 U.S.C. 875.  In particular, consider subsections (b) and (d), both of which forbid threatening interstate communications made with the “intent to extort.”  They also require that the threats be to “injure the person of another” (as in (b)) or to “injure the property or reputation of the addressee” (as in (d)).  If Joe’s account is true, then if the President was threatening to greenlight a story that would cause reputational or financial jury to Joe and Mika, this would seem to fit the injury element, even though it is not physical injury as required by subsection (b) (that is, if we can say that “injury to the person” also includes reputational or financial injury; of course, this could also mean physical injury only).

Here the problem is that the mens rea element requires an “intent to extort . . . money or other thing of value.”  Even in Joe’s account, the President did not seek money.  The question, then, would be whether the President’s alleged effort to extract an apology, and thereby change the substantive content of Morning Joe’s coverage, would constitute extorting a “thing of value.”  One might argue that a political commentary show’s substantive coverage of the President is a “thing of value” because it is the show’s content that attracts viewers and advertisers, revenue and ratings.   Perhaps, it could be argued, Morning Joe’s viability would be affected if it changed the way it covered the President.  But this would seem to be a contested issue in a case under either section 875(b) or section 875(d).  And if Sekhar’s understanding of extortion in the Hobbs Act context also applies to the extortion provisions of section 875, then it would not be enough to simply show that there was merely intent to coerce.

A somewhat more viable statute in the section 875 scheme could be subsection (c), which also forbids interstate communications that threaten to injure the person of another, but does not require any intent to extort.  Thus, we can avoid the extortion/coercion problem that Sekhar acknowledged, as well as the tricky issues involving money and what a “thing of value” is.   The Supreme Court held in Elonis v. United States that section 875(c) requires that the actor send a communication with the purpose of making a threat, or with knowledge that the communication will be viewed as a threat.  Mere negligence will not suffice, but the Court did not address recklessness (Justice Alito’s separate opinion would have allowed a conviction based on recklessness — “conscious[ly] disregard[ing] the risk that the communication will be viewed as a true threat”).  Again, if a threat to injure reputation or to cause financial harm satisfies the “injury to the person of another” element, then this would seem to be a better fit than the more complicated extortion statutes.

In short, those who say this alleged incident might not fit the legal standards for extortion or reputational blackmail may well be right.  I am not sure, however, that failure to satisfy extortion or reputational blackmail is, or should be, the end of the matter.  Again, if the First Amendment protects Joe and Mika from a threat of the kind alleged, then sections 241 and 242 are potentially implicated, and section 875(c) is worth a closer look.  But even if, as is certainly possible, Joe’s allegations would be insufficient to support application of the criminal statutes I have mentioned, there remains the question of whether — if the facts are as Joe alleges them — this amounts to a serious abuse of power, one that implicates the First Amendment rights of the media and that deserves greater scrutiny by Congress, the institution charged with investigating presidential abuses.

Questioning the media, even in a combative tone, is one thing, and hardly new for presidents.  But if a president seeks to do harm to individual members of the media merely because the president dislikes the content of, and viewpoint expressed in, the media’s coverage of him, that is quite another thing entirely.  And constitutionalists should stand firm against such an authoritarian posture, whether criminal or not.

Extortion, deprivation of rights, and the myth of the Twitter counter-punch: Part I

I rarely comment on the President’s tweets, unless they implicate a legal or constitutional issue of relevance.  And I am confident that everything has been said already about the President’s repugnant tweets concerning Mika Brzezinski and Joe Scarborough.  There is a follow-up issue on which I prefer to focus, but I will add only these thoughts on the tweet itself.

First, using a Twitter account to insult people is a rather pathetic form of “counter-punching,” and probably should not count as such.  In this context, “counter-punching” would be appearing in person on Morning Joe and saying to Joe and Mika’s faces exactly what the President said via Twitter.  Second, even if it is “counter-punching,” our civil society — and notably our criminal law — has always taken an unkind view of certain disproportionate forms of “counter-punching.”  If someone pushes me on the subway, or insults me on the street, or slaps me in the face, I do not have the right to shoot him in the forehead with a rifle.  Proportionality matters.

That said, another issue arose yesterday during Morning Joe that has received some attention.  During yesterday’s broadcast, Joe and Mika described a story in which, according to them, the President — through one or more of his staff at the White House — threatened to permit the publication of a story in the National Enquirer about Joe and Mika’s personal life together if they refused to call the President and apologize for their negative commentary on him.  If they called and apologized, Joe’s account goes, the President would use his influence and connections with the Enquirer to kill the Enquirer story.  The President denies the account as it was told on the show, but Joe claims to have documentary evidence to prove the version he told.

Several commentators have explored whether this amounts to criminal extortion or reputational blackmail.  I want to add just a bit more to the criminal law angle, but I will reserve a discussion of the extortion statutes for a separate post.  Instead, I will focus this post on the potential deprivation of constitutional rights and conspiracy to do so, both of which are serious federal crimes.

For purposes of this legal discussion, I will assume the accuracy of Joe’s description of the events, though we still do not know for certain what exactly happened and it is possible that Joe’s account leaves out salient details that could affect the legal analysis here.  I also interpret his account as not simply an effort by the President to seek an apology, but also to induce Joe and Mika to stop making negative comments about the President and to cover the President in a positive light (otherwise, what’s the point?).  So based on this, here are the legal issues that I think could be relevant that concern the potential criminal deprivation of civil rights.

If Joe’s account is accurate, then it is possible that the President has endeavored to coerce the media into doing something with its coverage, or refraining from doing something with its coverage, by threatening reputational or financial harm to television hosts based on the content of their speech (or, worse still, the viewpoint expressed).  If so, this has very serious First Amendment implications, and raises the question of whether the President has willfully deprived Joe and Mika of their First Amendment — and perhaps equal protection — rights under color of law, in violation of 18 U.S.C. 242.

As always, in any section 242 case, there is the question of what “willfully” means.  The Supreme Court said in Screws v. United States that this includes “open defiance or reckless disregard of a constitutional requirement which has been made specific and definite.”  There may also be some question as to whether the President was acting “under color of law,” if he was relying simply on his private relationship with the Enquirer rather than on any official power as President.  But there is case law holding that an official acts “under color of law” when he uses the victim’s fear of his power as a public official to induce the victim to do something or refrain from doing something.  See United States v. Giordano, 442 F.3d 30 (2nd. Cir. 2006).

And that connection is strengthened if the President used White House staff to communicate his threats.  Indeed, if Joe’s account is accurate, then the use of White House staff would seem to implicate 18 U.S.C. 241, which says that it is a crime for “two or more persons to conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.”  The conspiracy problem is worse still if the President formed an agreement with the folks at the Enquirer in this regard, though the Enquirer denies any contact with the White House on this specific matter.  The conspiracy against rights statute does not require color of law, nor does it require an overt act in furtherance of the agreement.  Criminal liability attaches the moment that the agreement is formed.

Of course, presidents and other politicians often use their position to influence media coverage (granting special access, etc.).  Doing so is not typically thought to implicate the First Amendment.  The question here is whether, assuming the veracity of Joe’s account, there is something different — and constitutionally pernicious — about coercing a change in viewpoint by threatening to allow publication of potentially damaging information about a media figure’s personal life.  The act-omission distinction might also be important here under section 242 (if the allegation is simply that the President failed to do something), although the theory could be that the threat itself constitutes the deprivation.

All of this is subject to the usual caveats that, first, it is not clear that the President violated a criminal law; and second, even if he committed a criminal offense, he likely would not be prosecuted while in office.  Still, as I have said before, this would not immunize him from a congressional investigation or impeachment.  Some may think that further discussion of this story makes a mountain out of a molehill.  But if Joe’s account is true — if the President used his office, and those in his charge, to communicate to prominent cable news hosts that he would greenlight, or at least not intervene to stop, a potentially damaging story about their personal lives as a way of coercing them into apologizing for negative content and giving him more positive coverage — then it is hard to imagine how this would not constitute a serious abuse of power and a threat to the First Amendment of the Constitution.  And it is surely worthy of a congressional inquiry.