Below is my column in The Hill on the growing calls for criminal charges against President Donald Trump. This follows an all-too-familiar pattern in the use of the criminal code as an extension of politics.
Here is the column:
If there is one consistent element to the opposition to President Trump, it is the clear desire not only for a political solution but for a criminal solution to his tenure in office. Within weeks of taking office, his critics called for him to be locked up. Over the last three years, experts have claimed a basis for a dozen criminal charges. The failure of these claims to materialize has not deterred them from searching for additional theories to prosecute him.
The criminal code has been a cathartic release for his critics, delivered by a host of experts willing to distort controlling law to meet the demand for such charges. From the campaign finance allegations and Stormy Daniels to the Russia investigation and Ukraine military aid, every controversy has been attended by claims of clear criminal acts, to which we now can add the coronavirus pandemic. The logic seems to be that, if you continue to work through the criminal code, eventually you are bound to be correct.
The Washington Post and Newsweek have published columns that raise other criminal charges, even though both were at odds with controlling definitions. Mary McCord, a former acting assistant attorney general for national security with the Justice Department, made an entirely frivolous claim in the Washington Post that Trump could be charged with criminal incitement for tweets in which he spurred citizens to “liberate” a handful of states. Many criticized the tweets as irresponsible and inflammatory.
McCord and other critics took it a step further by claiming it could be a crime. While saying she is “not necessarily” suggesting his prosecution, McCord maintains that it could happen because there are “armed people out there who listen to what he says and they act up on it in ways that are not always peaceful.” She added that the word liberate, particularly when it is “declared by the chief executive of our republic,” is not “some sort of cheeky throwaway” and is used for an “armed defeat of hostile forces.”
McCord brushes aside the difference between reckless and rebellious language. Despite her position as the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown University, she seems to advocate for criminalizing political speech. The criminal code allows for prosecution of a person who “incites, sets on foot, assists, or engages in rebellion or insurrection against the authority of the United States or the laws thereof.” Civil libertarians denounce this, yet McCord suggested that anyone, including the president, could be charged for calling for liberation from what they see as burdensome restrictions.
In addition to embracing a sweeping interpretation of the federal law to criminalize speech, McCord ignores other statements that would negate her theory. For instance, Trump said his reference was to protests against an infringement on constitutional rights rather than direct rebellion. She conveniently ignores that the only cases applying such a broad definition of incitement have either been rejected or been declared presumptively unconstitutional. Indeed, in the case of Clarence Brandenburg versus the State of Ohio, the Supreme Court held that even the actual advocacy for violence is protected speech unless it has called for an imminent crime.
McCord and others are unconcerned with the people who listen to what critics of Trump voice and “act up” in ways that are “not always peaceful.” Physical assaults on people wearing Make America Great Again hats have become more common. Then there are people like Willem Van Spronsen, who was featured on air for his political advocacy and later attempted to firebomb an immigration center and died in a shootout with police. Then there is Conner Betts, the mass shooter in Ohio who described himself as a leftist Democrat and backed Elizabeth Warren as a candidate. So should Democrats in Congress who call themselves part of the “resistance” then be charged under the extensive definition that McCord is now pushing?
Attorney Neil Baron has also suggested other possible criminal charges against Trump for his handling of the coronavirus, such as involuntary or negligent manslaughter for “irresponsible actions or failure to perform a duty” as president. Imagine if that were the standard for politicians. They could simply prosecute opponents for any policy or priority. Not to be too subtle, Baron heralded the performance of President Obama with fighting ebola to justify the notion of criminal charges against Trump. Fortunately, his suggestion is wildly at odds with case law, which protects officials in such discretionary actions and decisions. Otherwise, Obama could have been prosecuted by those people less enamored with his performance.
Legal analyst Glenn Kirschner has declared that Trump should be charged with negligent homicide for mishandling the coronavirus. He insisted that, as a former prosecutor, this is something he knows “too much about,” yet he misrepresented the law. If Trump could be prosecuted for allegedly not prioritizing assistance, then every president could be prosecuted by their rivals as murderers. No case exists to support a claim that a president can be charged for mishandling a crisis. Yet Kirschner said he was “trying to assimilate all available evidence” to see if he could build a criminal case.
Then there is Eva Golinger, who was called upon by Newsweek after she called for Trump to be “immediately removed from office and put on trial for sedition and treason” over his tweets. She wrote, “Trump is calling for the violent overthrow of Democratic governed states. He is a dangerous threat to public health and state sovereignty.” Golinger is formerly best known as an adviser to the late Hugo Chavez, the Venezuelan president who destroyed free speech, political dissent, and finally the economy in that country. As Chavez ruthlessly cracked down on opponents and the press nine years ago, Golinger said, “I am a soldier for this revolution.”
For over three years, the media has lent credence to criminal theories that are baseless and sensational. While railing against the accusations of fake news, they regularly promote fake laws. Critics have called for banning of people who espouse untruths about the coronavirus, and even for ending live coverage of his press briefings for that reason, but they love to relish every chimerical theory as the long-sought charge to prosecute Trump. This insatiable demand has reduced formerly responsible news outlets to mere medicine shows peddling legal elixirs to desperate dupes. If you are really looking for lawless incitement, there is simply no need to look any further.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.