Did President Trump Violate Federal Law With His Alabama Rant?

I wrote yesterday about the racial, social and football implications of Trump’s rant in the history and home of George Wallace.

But a new, and by all appearances excellent, commenter on that post noted this:

“It occurs to me that his tweets are at least arguably in violation of 18 U.S. Code § 227. That section prohibits the POTUS (among others), from “attempting to influence or interfere” in a private company’s labor matter, to urge a “political” firing. This is especially true where the basis for the POTUS’s urging of the firing of such a private company employee (union covered, collective bargaining agreement governed) — is (as here) centered on protected political first amendment expression.”

So, is that right? Well, it is a LOT closer call than most would dismissively think. Let’s look at the language of the relevant statute, 18 USC §277:

18 U.S. Code § 227 – Wrongfully influencing a private entity’s employment decisions by a Member of Congress or an officer or employee of the legislative or executive branch:

(a) 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—
(1) takes or withholds, or offers or threatens to take or withhold, an official act, or
(2) influences, or offers or threatens to influence, the official act of another,
shall be fined under this title 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.
(b) In this section, the term “covered government person” means—
(1) a Senator or Representative in, or a Delegate or Resident Commissioner to, the Congress;
(2) an employee of either House of Congress; or
(3) the President, Vice President, an employee of the United States Postal Service or the Postal Regulatory Commission, or any other executive branch employee (as such term is defined under section 2105 of title 5, United States Code).

Read the statute. It is a lot closer call than you think. Will Trump’s own Department of Justice pursue this? No, no chance, nor probably should it be. Is it a viable question, and one that ought be discussed in the public and media, yes, absolutely.

As sports law “experts” would say, let’s break it down. There are elements to a crime. Trump is unequivocally a “covered person” within the ambit of the statute. Also unequivocal is the fact that his words in Alabama were meant to influence “an employment decision or employment practice of any private entity”, in this case, the National Football League.

The problem lies in section (a)(1) of the relevant statute, which requires:

takes or withholds, or offers or threatens to take or withhold, an official act

It is easy to see and admit that Trump would do just that in a heartbeat. But Trump did not do that per se in his Alabama speech.

No. That element cannot be met by Donald J. Trump’s Alabama Song of hate. So, no, there is no exposure to 18 USC §227.

It is a great thought and question though.

And it is a perfect example of the precipice of racism, bigotry and ignorance on which the political discussion in the United States, and our Article II Executive Branch, courtesy of President Trump, nows perilously treads nearly every day.

The events and actions in and from the NFL today, tomorrow, and in the next few weeks pale in comparison. They are a symbol and a voice. But it is so much more and bigger than that.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
65 replies
  1. earlofhuntingdon says:

    As always, Donald doubles down on his rant as NFL players kneel at Wembley.  He’s livid that anyone should “disrespect” him, especially uppity athletes.  After all, only Donald and his peers have rights.  For anyone else to do what he does would be insubordination and cause for firing and for being deprived of a career for life.

    Trump can’t help himself.  But has that, or ignorance, ever been a valid defense?  But this isn’t about the law so much as it is about politics and the political priorities that allow this president to behave the way he does and remain president.

  2. JerryN says:

    I think the phrase “solely on the basis of partisan political affiliation” in section (a) also makes it inapplicable. Given enough time, I’m sure that DJT will cross both that line as well as the one you’ve identified.

    • bmaz says:

      Yes. Exactly. I considered that. I think you might could make it past that and get to to a jury. The (a)(1) element not so much.

      • Peterr says:

        Until word of the IRS audits of kneeling players gets around.

        Trump *did* order audits of them, didn’t he? I mean, that’s the fun of being president, amiright?

        /s

  3. SpaceLifeForm says:

    Also seems close to Tortious Interference.

    Probably no actual economic harm, but one could argue it.

    The messages today by the teams were sufficient.

    Basically telling Potus to butt out.

    Example: Steelers were not even on the field in Chicago for National Anthem. They took a stand (instead of a knee) and sent a message to Trump.

    He has way more stuff to worry about than trying to dictate actions to the owners.

    But fsscists think alike.

    https://mobile.nytimes.com/2017/09/24/sports/nfl-trump-anthem-protests.html

    Steve King, a Republican congressman from Iowa echoed President Trump this afternoon by urging owners to fire players whop[SIC] did not stand.

    • bmaz says:

      “That jock sniffer” is your boy. Brady has his lid in locker at Foxborough, Kraft gave him a million dollars towards election and Kraft gave him a Super Bowl ring.

      Don’t act like the Patriots are not among the biggest and sickest Trump enablers on the face of the earth.

      • pdaly says:

        When I heard Kraft gave Trump a Super Bowl ring my next thought was whether Trump felt immediate kinship with Putin who has a Super Bowl ring of his own, albeit one grifted from Kraft.

  4. earlofhuntingdon says:

    Yale Skull & Bones man Steve Mnuchin (his daddy was a Goldman partner) says athletes should exercise their First Amendment rights on their own time, not while working (or in front of the camera).

    His unspoken criticism is that talking politics while working – which he does all day – is a form of employee insubordination. His spoken criticism is that these athletes – who object to portions of the national anthem and might object to its use at commercial, profit-making entertainment events – are disrespecting “the military, and the first responders, and the country.” That is, they are “disrespecting” whomever his focus group imagined might be more popular on a Sunday afternoon than pro football players.

    Crafty Mnuchin likened his proposed restraints on pro athletes to other NFL rules, such as having to keep their jerseys tucked in while on the field. Mnuchin’s odd notion of comparability telegraphs the quality of his defense of Trump’s public description of a footballer as a “son of a bitch”. El Presidente Donaldo, says Mnuchin, “can use whatever language he wants to use.” And we can give Messrs. Mnuchin and Trump all the respect they deserve.

    • posaune says:

      While Minnie the Moocher tries to use a US military plane for his honeymoon — that kind of on-the-job personal expression?

    • Peterr says:

      No, no, no.

      The criticism is not that talking politics while working is employee subordination, but that talking politics that do not agree with the politics of The Boss is employee insubordination. “We do not allow The Help to disagree with Their Betters.”

      See also “NASCAR“:

      “Get you a ride on a Greyhound bus when the national anthem is over,” team owner Richard Childress responded when asked what he would do if one of his employees protested during the anthem. “I told them anyone who works for me should respect the country we live in. So many people have gave their lives for it. This is America.”

      Team owner Richard Petty, who won a record-tying seven championships as a driver, said he would fire any employee that didn’t stand for the anthem.

      “Anybody that don’t stand up for that ought to be out of the country. Period,” Petty said. “If they don’t appreciate where they’re at … what got them where they’re at? The United States.”

      ‘Cause no one knows how to deal with The Help better than NASCAR does.

  5. ThreeDayCondor says:

    Thanks BMaz…

    I think your take is… spot on.

    And I think as more and more players (Titans, etc.) fail to take the field at all during the anthem… 45 will unleash a new tweet-storm that will cross that line.

    Let’s watch out for it, together shall we?

    Finally — you and Marcy knew me (and I, both of you) over a decade ago, under the handle “nolo contendre” as part of the dick cheney lunacy.

    Agent Orange’s acts since Charlottesville have caused my… reappearance.

    [And yes it was a great old flick!]

    Namaste!

  6. Bay State Librul says:

    Bmaz

    I agree with you.
    The Pats have enabled Trump.
    Belichick is a fucking arrogant mother fucker. I do not like him.
    Brady on the other hand, hopefully listens to Giselle
    In any case, I’ve been a Patriot fan since Butch Songin and Babe Parille were quarterbacking in 1960.
    Today’s game was a jewel and I was marveling at the ability of Tom to pull a rabbit out of his arse.

    Jack

  7. KarynRH says:

    I don’t think that disqualifies his actions. In that section, any of those three qualify. One doesn’t need to meet all three tests, just any of those. That’s why the word “or” is there.

    “(a) 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—

    (1) takes or withholds, or offers or threatens to take or withhold, an official act, or

    (2) influences, or offers or threatens to influence, the official act of another,”

    • bmaz says:

      Hmmmm, fair point about the “or”.

      Think may still be a question as to “influences” as to ability to meet reasonable doubt standard. But great point on the “or”. I did not pay enough attention to that initially.

      • KarynRH says:

        I don’t know enough to voice an opinion on whether or not he violated it but on the face of it, to a layman, it looks as if he did. Or perhaps just the spirit of it. But I don’t think it’ll go anywhere either way. For some reason, Trump is so far largely immune to the consequences of his actions. And inactions.

        • bmaz says:

          It is kind of maddening. I am not one to easily say “what if that were Obama?”, but there are times when it is painful. Past is not supposed to be the standard, even if it displays rank hypocrisy. Trying times though!

  8. ThreeDayCondor says:

    One additional observation — and I do think this is a smoke screen to distract from the Muslim Ban 3.0 45 signed tonight — troublingly see some of 45’s latest tweeting, post today’s spreading NFL protest forms:

    “…Standing with locked arms is good, kneeling is not acceptable….”

    I don’t think he’s quite reached the “withholding of an official act” standard yet — but he is getting there, tweet by tweet.

    Forgetting the specific US Code sections for a tic — who the fuck does he think he is? Since when did the Constitution vest in the POTUS the right to declare what forms of free expression and protest would be “acceptable” (where the same neither incite violence, nor threaten imminent lawlessness)?

    This small handed tyrant is no one’s king. And I for one will use the courts to teach him that.

    I’ll be back late on Monday — off grid for a bit now.

    Thanks BMaz (and Marcy)!

    Namaste

  9. Thomas Del Beccaro says:

    When you attempt to practice law – then read the law.  The statue says “solely on the basis of partisan political affiliation.”  

    Kneeling and protesting is  a partisan political affiliation. Being a Democrat or Republican is.  terse is no chance he speech violated this statute.

    • stumptowngreen says:

      Unlike “covered persons,” “partisan political affiliation” is not defined in the statute.  The ordinary definition of “partisan” is “an adherent or supporter of a person, group, party, or cause, especially a person who shows a biased, emotional allegiance.”  So I don’t think it is necessarily limited to just being affiliated with the Democratic or Republican party.  Here, the “cause” is racial injustice.  So singling out an individual or group because of their “cause” could potentially fit within the meaning of the statute.

  10. Tim says:

    “I wrote yesterday about the racial, social and football implications of Trump’s rant in the history and home of George Wallace.”

    Fuck you and fuck the race card you rode in on. This has nothing to do with race and everything to do with a bunch of millionaires being disrespectful twats and you fucking know it.

  11. Ed says:

    You’re overthinking it. The fatal flaw is that there’s no “official act of another.” The term “official act” means the act of a public official that’s carried out in that person’s official capacity. Thus there’s no such thing as an “official act” of a private person or entity (like the NFL). Therefore Trump here was not threatening to influence an official act. It’s that simple.

  12. Edwin Mix says:

    1 OR 2, 1 doesn’t apply but 2 does. It’s not both but either or. Emptywheel screwed up on her conjunctions.

    • Peterr says:

      Whether you are correct about your first two sentences, you screwed up on your noun and pronoun in the third sentence. The post is by Bmaz, not Emptywheel, and bmaz is a he.

      • bmaz says:

        Doesn’t really have the first two sentences right either, and that issue was never the intent of the post, and has been discussed at length in the comments.

  13. martin says:

    Serious question. Why is the National Anthem played at a *sports* event. It has nothing to do with sports. Seems like somewhere along the line someone figured out by doing so it gave the *event* some kind of stature, when in reality, it’s only a bunch of grown men busting their heads to get a ball to a certain place.

    • bmaz says:

      I think that is a very fair question. It need not be. Personally, I don’t care if it is, but the overhyping of it, as so often is the case, and sure is by Trump, is simply asinine. And “the troops” actually fought and died for each citizen to make what they will of it, NOT to demand idiotic fealty.

      • P J Evans says:

        It’s my understandign that playing it before non-political events is something that started in the late 50s or early 60s, and wasn’t televised much before Shrub was president. Then the NFL sold that time to the military for money. (AIUI, that was in 2009, and it was “marketing” the military to people who might want to join.)

      • Rugger9 says:

        It’s normally done to honor the nations involved in the match, which is why one hears the Canadian anthem when Toronto is involved.

        With that said, I’d also like to question why Kate Smith’s version of “God Bless America” is joining “Take Me Out to the Ballgame” at the 7th inning stretch.  This started up after 9/11/01, but was originally done during WWII and (at least in my minor league team ) marketed as honoring America.  I seem to recall something about patriotism being the last refuge of a scoundrel.

        Those of us who have served made our oath to protect and defend the Constitution, not the President, from all enemies, foreign and domestic.  POTUS is given the authority for issuing orders, however, we are also aware of illegal orders that do not require compliance (such as for torture).

  14. Robin says:

    You write that the statute is not applicable because

    “the problem lies in section (a)(1) of the relevant statute, which requires:
    takes or withholds, or offers or threatens to take or withhold, an official act”

    Actually, the statute does NOT “require” that item in (a)(1), because there is an “OR” after (a)(1)–namely, (a)(2)–which says that the statute is also applicable when an official “influences, or offers or threatens to influence, the official act of another.”

     

  15. bmaz says:

    Okay, so several people have wandered in to criticize the legal analysis on this. Heh. It was never intended as a deep legal analysis thread, but more of a discussion point as to how freaking absurd Trump’s speech in the Heart of Dixie was.

    This statute would NEVER be charged by any DOJ, and certainly not that of Jeff Sessions. If it was, I could find a ton of ways to defend it, including those that have been noticed in this thread, and several others. That, for once, was not the point of the post. Just saying….

    • KarynRH says:

      That it even needs to be looked at is astounding and I’m really glad you brought it up. I would never even have known he came at all close to violating anything other than sanity.

  16. Rugger9 says:

    Of course it serves as a useful distraction for several important issues now:

    1. Jared’s private email service which is what Kaiser Donald hammered HRC for.

    2. Mueller’s upcoming reveals on Flynn, Manafort and potentially the Kaiser himself.

    3. The Graham-Cassidy bill (which has been amended to make it even worse: https://www.dailykos.com/stories/2017/9/25/1701378/-SURPRISE-Graham-Cassidy-2-0-still-makes-thousands-of-policies-illegal-in-98-days-WITH-A-TWIST).  BTW, the “hearing ” is today with an interesting witness list: https://www.dailykos.com/stories/2017/9/25/1701320/-Here-comes-the-Graham-Cassidy-show-hearing-now-with-added-Santorum.

    4. The ongoing ignoring of the 3.5 American citizens in Puerto Rico (really not even one tweet) without power or help.  HRC bashed Trump for this on the net, but Tweeto is strangely silent.  This is also about the victims of Harvey and Irma (apparently Governor Scotts’s staff attempted to delete messages to make the false claim that the retirement home didn’t call them – http://talkingpointsmemo.com/livewire/florida-govs-office-deleted-voicemails-nursing-home). FWIW, this will kill any further attempts to make PR the 51st state, and give plenty of support for the otherwise finished independence movement there.

    So, while the GOP is only too happy to screw America over for making sure the big donors (D&C Koch offered 400 M$ if this passes to the RNC) get what they want, they still need cover like these examples to fly these under the radar and keep the party out of the news until the deals are done.

     

    • bmaz says:

      All of that is so true.

      And the Fourth is literally tragic.

      We have friends there we finally heard from in the middle of the night last night. They are okay. But report incredible devastation.

      • Rugger9 says:

        Plus the American citizens on the US Virgin Islands, and we’re only about halfway through hurricane season.

        We’d like to help out, but how will it get to the islands without power or apparently transport to there?

         

        • bmaz says:

          YES! This is a real problem. And one I would like to talk about a little more. Hopefully will get back and be able to do so tonight.

          • Rugger9 says:

            I see we had the “USNS Comfort is on its way” claim watered down to a Friday deployment with at least a week’s delay for transit.  However, the USS Kearsarge is there (it’s a Wasp class LHD) as well as the USS Oak Hill (a LSD, somewhat smaller) so that is something.  Not enough, though.

  17. Dark says:

    (a)(1) ends with an or, meaning the act doesn’t have to fit in (a)(1) if it fits with (a)(2), which it does

    The only grey area with this article, however, is the political affiliation part, which some say it is and some say it isn’t.

     

    • bmaz says:

      Fair comment. Did you try to look at our comments thread first before that comment?

      If you had, I think you would have seen what is unique about this blog.

      It is NOT just the posts, it is, historically, also the discussion.

      Please read, think, and come back again. Seriously, your input, honestly given, is exactly why we are better. Contribute to that goal more often. We, and you, will be better if you do.

      • punaise says:

        backatcha! y’all are way over my pay grade here, but it’s fascinating to try to follow.

        Plus, my new son-in-law’s last name is Wheeler, so there you go…

            • bmaz says:

              It is all so mad. We could spend a couple of blog posts even discussing how much so. But things are what they are.

              Cannot say enough how good it is to see old voices in new times though. Thanks.

            • Valley girl says:

              punaise!  Great to see your nom de plume!  And yeah, FDL does seem like a long time ago!  OT (bmaz forgive me) but I’ve spent a lot time learning French over the past 3 years.  I now understand “toute le monde veut devenir un chat”! And I can conjugate vouloir and devenir.

              • Valley girl says:

                p.s. punaise- I read EW on a regular basis, but haven’t commented for ages- because like you said, it’s way above my pay grade.  But, I thought your question was interesting.

                • ThreeDayCOndor [was once long ago, nolo] says:

                  Great to see all these old handles re-emerge…

                  Bmaz always ran a class act.

                  As did Marcy.

                  I’ll stop back in more regularly now.

                  And those of you who “get it” — that the point of the post is not to actually presecute 45, but to remark about just how close to lawlessness he REGULARLY skews — thanks for adding your insights.

                  Onward, now… to the rest: oh well. I wish you the best, anyway.

                  Namaste

  18. Mitchell says:

    Let’s presume Donald broke the law down in ‘Bama (although there’s a possible insanity defense). Who’s going to bust him over it? Donald’s entire business career rests on the model of “getting away with it”. I’d daresay that besides showing that his personal wealth is modest (because of the reliance on shells and offshore accounts), he doesn’t want his taxes released because a good chunk of what’s shown is illegal. Too: That he’s always audited has yet to be reported by any reputable source. And since, as a rule, the IRS doesn’t audit the wealthy, yet another reason to be suspicious.

  19. Lex says:

    It’s worth remembering that the extreme military component of the national anthem at NFL games (and other events) was originally the result of DoD paying the NFL millions to do it. That ended when congress told them to knock it off. It’s continued because jingoism is as American as apple pie and the NFL.

    DoD didn’t want to promote general patriotism, it was advertising for the military, and cheaper than actually caring for vets appropriately. We now have a full blown socio-political issue as the result of an advertising budget paid for by tax dollars.

  20. Kent Bernard says:

    Donor records show political affiliation and influence.

    I one person is fired would show the President did influence the action.

  21. James M Henderson says:

    My approach, posted elsewhere:
    No, Donald Trump did NOT violate Title 18 USC 227.
    Here’s Title 18 USC 227:
    (a)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—
    takes or withholds, or offers or threatens to take or withhold, an official act, or
    influences, or offers or threatens to influence, the official act of another,
    shall be fined under this title 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.
    So how is it that Trump has not violated section 227?
    Typically, in analyzing a statutory criminal offense, we break the crime down into its parts or elements. The elements of a 227 offense are:
    (1) A covered government person
    (2) With intent to influence an employment decision or practice of a private entity
    (3) Solely on the basis of partisan political affiliation
    (4a) Either
    (i) Takes or withholds an official act
    (ii) Offers to take or withhold an official act
    (iii) Threatens to take or withhold an official act
    (4b) Or
    (i) Influences the official act of another
    (ii) Offers to influence the official act of another
    (iii) Threatens to influence the official act of another
    The statute defines “a covered government person” to include the president, so that element of the offense is clearly met. Sports franchises likely constitute private entities and it appears likely that the second element can be proved, that Trump acted with an intent to influence employment decisions for protesting athletes.
    If we stop there, we could certainly conclude that Trump is guilty of a violation of section 227.
    But that’s not where the statute ends in defining the offense it creates, so we are not free to stop there. We still have to examine whether it could be proved that Trump acted “solely on the basis of partisan political affiliation” and whether “an official act” was taken, withheld, offered to be taken or to be withheld, threatened to be taken or withheld or whether “an official act” was influenced, offered to be influenced, or threatened to be influenced.
    Neither of these elements is presented in the facts of Trump’s stem winder on sporting event protests by professional athletes, nor by Trump’s tweets on social media.
    Trump made his remarks at a rally supporting Luther Strange in his run-off bid for the US Senate Seat vacated when Jeff Sessions became the Attorney General. The US Government does not sponsor or endorse political campaign rallies and the President’s presence at that rally was not an official act of the President. (A contrary conclusion might be drawn if the remarks had come during a speech at the dedication and launch of a new US Naval vessel, for example.)
    Back in the waning days of the GW Bush administration, Louisiana Congressman Jefferson was investigated for taking bribes (you may remember his having “cold cash,” approximately 50K dollars stored in a freezer?). He argued that the “official acts” he was charged with taking did not, in fact, fall within the definition of “official acts” under the bribery statute. The federal bribery statute is, in fact, part of the same chapter of federal criminal laws directed to official misconduct. The US Court of Appeals for the Fourth Circuit rejected the narrow definitional approach Jefferson urged. The Court concluded that a Congressman’s “official acts” would be defined as follows:
    “First, the act must be among the official duties or among the settled customary duties or practices of the official charged with bribery. And second, performance of the act must involve or affect a government decision or action.”
    So, for Trump to be guilty of a violation of 227, you would have to show that he had taken, withheld, offered to be taken or to be withheld, threatened to take or withhold an act that was “among his official duties” or that he influenced, offered to influence, or threatened to influence the taking of “an official act” by another government official. But none of these species of wrong have been shown or suggested to have occurred. Trump did not veto a bill, or sign one, or issue an executive order or reject one, or grant or withhold a pardon, etc., in order to influence employment practices or policies of any major league sports franchise.
    Not only is that element of the offense absent, but there is no basis to assert that Trump took his act solely on the basis of partisan political affiliation. Party affiliation of protesting players has not been a feature in any of Trump’s remarks, and there is every patent reason to believe that Trump is motivated by another concern entirely: the debilitating impact of flag and anthem protests on patriotism and national pride. Again, the element just isn’t there.
    We’ve all met people we’d love to see locked up. But our dislike of them doesn’t authorize us, or the police, or prosecutors, or courts, or the Congress to ignore half of the elements of a crime and convict them in Star Chamber.
    No. Trump is not guilty of violating 227. His approach and method may strike some, many, even most as tre gauche, but it is no crime.

    • bmaz says:

      That is swell, and thank you.

      Dow you have a real link for all of us here, or anything I did not see covered in that blurb?? Or naw?

  22. Dylan says:

    A respectful correction: your reading of the statute line by line is incorrect. The way these laws are written is that each numbered section (1),(2), etc. are linked with the former letters (a),(b), etc. Therfore, it is not necessary that someone meet the demands of (a)(1). If they also meet the elements of (a)(2) then they have violated the statute. Do I think anything will come of this? No. But it is important to know that not every clause of the statute must be met in order to have committed the offense. Thank you!

    Dylan M.- MELP, Vermont Law School, 2015

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