While some of President Donald Trump’s political opponents look forward to the 2018 midterm elections as their first chance to defeat him and his agenda, others are not so patient. Since Trump’s inauguration, the more irreconcilable members of the self-titled Resistance have combed the Constitution and the statute books in search of some alchemical formula that will transmute the President back into a common citizen (if not into a federal prisoner).
The reality-based faction of the Left knows that this is all distraction. Trump was elected. Barring death, resignation, impeachment, or incapacity, he will remain president until at least January 20, 2021. Many of them are working to bring about that impeachment but they know, at least, that they are limited by the Constitution in what they can do to defeat the President.
Others, however, flail from one nonsensical scheme to another. For a while, these gadflies buzzed around the Emoluments Clauses of the Constitution, and even now a lost cause of a lawsuit based on that theory is proceeding through the courts.
One of the parties to the Emoluments suit, Harvard Law School Professor Laurence Tribe, touted an even more outlandish theory two days ago: that Trump’s criticism of NFL players last week is a violation of federal law and is punishable by up to 15 years in prison. On Sunday, Tribe, a respected legal scholar currently pursuing a second career as a better-educated version of Louise Mensch, retweeted a Twitter account named “Trumpnado2016” and added his own approval of the anonymous user’s theory:
Looks like it clearly covers @POTUS and he appears to have violated or at least attempted to violate 18 USC sec 227(a)(2) on #KneelNFL issue https://t.co/c78RgHFyc8
— Laurence Tribe (@tribelaw) September 24, 2017
Random Twitter users are bound to expound upon ideas they do not understand. To refute them all would be a waste of everyone’s time. But when an eminent legal scholar gives his imprimatur to a theory, it becomes more serious. The approval of an expert does not mean the thing is any truer than it was before it came to his attention. This latest stratagem, like the others, is doomed to fail.
Different Nonsense, Same Result
The Resistance’s latest will-o’-the-wisp concerns Trump’s speeches and tweets criticizing NFL players who failed to show proper respect for the American flag and anthem. These words, in their minds, violate title 18, section 227 of the United States Code, which holds that “whoever, being a covered government person, with the intent to influence, solely on the basis of partisan political affiliation, an employment decision or employment practice of any private entity… influences, or offers or threatens to influence, the official act of another … shall be fined … or imprisoned for not more than 15 years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.”
Tribe goes on to note that the statute defines “covered government person” to include the President of the United States. This part of the analysis is indisputably correct. Everything that follows, however, is hogwash.
Let’s first consider the words Trump actually said about anthem-protesters:
“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a b-tch off the field right now. Out. He’s fired. He’s fired!’ You know, some owner is going to do that. He’s going to say, ‘That guy that disrespects our flag, he’s fired.’”
That’s undoubtedly abrasive language of the sort we are not used to hearing from a president. Even many who disagree with Colin Kaepernick and his imitators wish that Trump would have stayed out of it and not further inflamed a volatile issue. But do those words rise to the level of an attempt to “influence … an employment decision or employment practice of any private entity”?
It is the right of all Americans to say something as commonplace as “that guy ought to be fired.” We see it every day on the internet when some ordinary American’s misstep rises to the notice of the Twitter mobs. It has always been a part of life for more famous people that members of the public would call for them to be sacked. The First Amendment protects these expressions. Even in the case of government employees like Trump, the courts have long held that where an employee “spoke as a citizen on a matter of public concern” about something not related to his employment, the employee is entitled to essentially the same protection as if the statement had been made by a member of the general public.
The rosters of NFL teams are a matter of public concern, as anyone listening to sports talk radio for five minutes could tell you. They are not a part of the President’s job, nor are they anything he has any control over. You may agree with Trump’s comments. You may disagree. You may find them asinine. But in no way can you honestly claim that he was doing anything different than Sal from Hoboken when he calls into WFAN and demands the Giants’ coach be sacked after their miserable 0-3 start. It is ordinary spleen-venting, the sort of act engaged in by millions of Americans. It never, to our unending disappointment, actually influences a team’s owner’s decisions.
Is Respect For The Flag A Partisan Issue?
There is also the element of the crime that requires the act be done “solely on the basis of partisan political affiliation.” Quite clearly, that is not present here. Trump, nominally a Republican, is not targeting Democrats employed by NFL teams for termination. Are the kneelers all Democrats? Are the standers Republican? No one knows. But Trump did not say to fire all the Democrats on the team: he said he would like to see an owner fire someone who “disrespects our flag.”
That difference is crucial. The statute is narrowly written to prevent government employees from influencing firing decisions based on the basis of partisan political affiliation. It says nothing about calling for the firing of someone based on an act they deem improper. That is something that happens every day in Congress and in the executive branch. Whenever a corporate scandal erupts, members of Congress fall over each other racing to the cameras to call for a CEO’s firing. This is no different. It is hot air, not partisan maneuvering.
The law’s narrow drafting hints at its true purpose: it was enacted in 2007 as a part of the Honest Leadership and Open Government Act. It was passed by near-unanimous majorities and signed into law by President George W. Bush. And it had nothing to do with yelling at football players.
The law was a sweeping ethics reform bill and was intended to outlaw some of the actions lawmakers undertook during what was known as the “K Street project” of the mid-1990s. For the 40 years that Democrats controlled Congress before 1995, relationships grew up between politicians and industry lobbyists. Those relationships included congressmen requiring that the lobbyists’ clients contribute money to them, as well as demanding that the lobbying firms hire their former staffers and retiring members in order to assure continued access to power.
When Republicans took Congress in the 1994 midterm elections, they might have chosen to end the corrupt cycle. Instead, they tried to take it over and demanded that lobbying firms fire those Democrats and hire their former members and staffers instead. Essentially, they influenced, solely on the basis of partisan political affiliation, an employment decision or employment practice of a private entity. Sound familiar? This is the practice the Honest Leadership and Open Government Act banned.
No End Run Around Impeachment
The law very clearly does not stop the President from ranting about Kaepernick and his band of anti-anthem activists. But even if it did, Tribe and other constitutional law scholars should have known that it would not change the calculus of presidential removal. As was the case in the Emoluments brouhaha, anyone familiar with our governing documents must know that presidential misbehavior while in office is very clearly a matter for Congress, not the courts. As I wrote about that case in June:
The Framers spent a considerable portion of the Constitution’s text detailing the process of impeachment and removal from office. And, as the Supreme Court reiterated in Nixon v. United States in 1993 (that’s Judge Walter L. Nixon, not President Richard M. Nixon) the Senate was the sole trier of impeachment cases. That means the subject of an impeachment cannot appeal to the courts. Logically, it must also mean that a state or citizen cannot jumpstart the impeachment process by getting a court to issue an injunction.
If all of this yelling about 18 USC 227 ever coalesces into an actual lawsuit, it will be dismissed by the courts. Evidence of law-breaking can certainly add to the case for impeachment, but it does not change the reality that presidents accused of wrongdoing must be impeached by the House and convicted by the Senate. There is no other way that they can be removed from office for committing crimes.
The Left Must Beware Blind Rage
Eventually, Tribe admitted to his mistake regarding 18 USC 227 on Twitter, noting that he should have researched the law “more deeply before tweeting re: its likely relevance”:
You could well be right; I should've researched 18 USC 227 more deeply before tweeting re its likely relevance. https://t.co/RhtPYixrpp
— Laurence Tribe (@tribelaw) September 24, 2017
Trump may be guilty of many possibly impeachable offenses; this definitely ISN'T one — even if he violated 227, as I too quickly suggested https://t.co/X0VHaL3Axn
— Laurence Tribe (@tribelaw) September 24, 2017
.@SeanDErlich is right re 201's narrow definition of an "official act." It would be a stretch to extend it to an NFL "decision or action." https://t.co/3cRdx5Deu9
— Laurence Tribe (@tribelaw) September 24, 2017
But hopefully this will serve as an object lesson for the left. It is easy for a committed partisan like Tribe to get blinded by rage at his political foes. But they should not let themselves be led astray, especially those (like Tribe) who ought to know better. There are enough laws on the books to accuse someone of breaking them almost every day. But before investing their efforts in accusations, the President’s opponents ought to consider a few things. Can the law reasonably be read prohibit the behavior in question? If so, does it pass Constitutional muster? And if it does, does it create any remedy that did not already exist?
The answers here are no, no, and no. That will not stop the true fanatics, and some lawyer with more outrage than good sense will probably waste his time filing a suit based on this law. But people more firmly grounded in reality should not waste their time on this magical remedy and nonsensical legal theory.
