No, Trump Did Not Commit A Crime In Threatening To Withhold Funds From Michigan [Updated]

      Once again, I agreed with the overall criticism of the comment, but my concern, again, is with the need to presume or suggest criminality when the statement could just as easily be non-criminal and constitutional.  It is the hair-trigger response that I have criticized in the past, including statements that the tweet is clear evidence of extortion.
      University of Texas School of Law professor and CNN legal analyst Stephen Vladeck tweeted that Trump’s tweet was clearly unconstitutional:

Steve Vladeck

@steve_vladeck

In a single tweet, the President:

1) Lies (that’s not what MI is doing);

2) Asserts without support that someone else is breaking the law;

3) Threatens action that would itself be unconstitutional; &

4) All in service of an unsubstantiated conspiracy theory about voter fraud. https://twitter.com/realdonaldtrump/status/1263074783673102337 

     It was an odd conclusion when Trump did not say what funds would be withheld. Moreover, Trump said “I will ask to hold up” funding. Thus, he could be referring to funds that are discretionary in their distribution or he may be suggesting asking Congress to withhold such funds.  Either could be constitutional.  Yet, Vladeck is able to immediately declare the suggestion to be unconstitutional on its face. 

     Vladeck later added that the tweet was not just unconstitutional but illegal.

Steve Vladeck

@steve_vladeck

Except that withholding federal funds over (unrelated) policy disagreements is itself “illegal[] and without authorization.”

View image on Twitter

Once again, the statement could be entirely legal if the funds were discretionary or Trump asked for the restrictions from Congress.  Such things appear to matter little.  Simply declaring a tweet a crime is instantly accepted and repeated on networks like CNN and MSNBC.

Then there is former Director of the Office of Government Ethics Walter Shaub, who also declared this a crime in the making. Shaub has also been one of the most reliable sources for declaring tweets and comments to be criminal or impeachable matters against Trump.

Shaub was relying on 18 U.S. Code § 598, which states:

Whoever uses any part of any appropriation made by Congress for work relief, relief, or for increasing employment by providing loans and grants for public-works projects, or exercises or administers any authority conferred by any Appropriation Act for the purpose of interfering with, restraining, or coercing any individual in the exercise of his right to vote at any election, shall be fined under this title or imprisoned not more than one year, or both.

Again, the analysis leaps to a conclusion without any factual foundation.  Trump could have been referring to asking Congress for such restrictions. Moreover, if the funds were discretionary, it would be distributed according to the congressional design. Finally, even if funds were restricted in conflict with congressional intent, one would have to prove that it was done “for the purpose of interfering with, restraining, or coercing any individual in the exercise of his right to vote.” Trump is arguing that mail voting increases fraud in voting.  Instead, he is advocating the use of in person voting. He is not denying the ability to vote per se.

Of course, there is legitimate objection that, in a pandemic, the denial of this option would deter voting.  However, that is a matter that would turn on the specific facts of any restriction. For example, mail voting might be allowed subject to added anti-fraud guarantees.  The tweet says nothing on such specifics.  Indeed, the law does not state that any limitation affecting voting is a crime. It must restrain, coerce, or interfere with the act of voting.  Again, we would need to know the specifics before declaring that the tweet is clearly contemplating a crime.

Then there is former federal prosecutor Richard Signorelli, who declared the tweet to be extortion and not just criminal but impeachable. Yes, a new impeachment.

Richard Signorelli@richsignorelli

.@realDonaldTrump committing once again the crime of extortion in plain sight, now against the State of Michigan. Unfortunately, I believe he is forcing the hand of the House to commence new impeachment hearings for his continued criminality. https://twitter.com/realDonaldTrump/status/1263074783673102337 

     That, of course, is legally incomprehensible and unsupportable but it does not matter.  I addressed the same type of claim in my testimony during the Trump impeachment. It was one of the suggested articles of impeachment and even the House Democrats rejected.  The Supreme Court has narrowly defined these terms and such cases would bar the claim here.  My earlier testimony lays out this case law.
     The problem is that there remains an insatiable appetite for such legal analysis in the current echo-journalistic world.  Criminal laws are treated as endlessly flexible and fluid. Case law is disregarded and few even bother to address the actual elements required for these crimes. Indeed, the Washington Post just ran a column on a Trump related case that wildly misrepresented the holding of the Fourth Circuit, but it did not issue any correction.  It simply does not matter what the court or, for that matter, what the law says.
     President Trump also possesses a right to freedom of speech like other citizens. He was objecting to the use of mail voting as inherently more susceptible to fraud — a view shared by many.  He then said that he would ask to limit funds.  We do not criminalize such statements in this country. We also do not criminalize asking Congress for such restrictions.
     None of this will deter or diminish such legal analysis, which is meant to be more cathartic than credible for readers.  Of course, the unlimited interpretations of the criminal code was once viewed as abusive and dangerous for civil liberties. The use of the code for political purposes is a danger that defines some of the most authoritarian nations.  Yet, this is now a form of entertainment, if not a competition, to criminalize every statement or action by the President.  These analysts ignore that these unhinged interpretations could easily be applied to another president of their liking.  It not only trivializes the criminal code but robs the code of its moral and legal content.

 

UPDATE:

Two of those referenced in the both blog posting have responded and their objections should be considered as part of this discussion.  I have also responded to those objections below.

SHAUB RESPONSE

Shaub has responded that I misrepresented what he said because he was only saying that “it is worth considering” whether a crime has been committed. After calling me a “political analyst”, Shaub insists that it is unfair to say that he presented this as a “crime in the making.”  His point appears to be that he is better described as raising this criminal provision not as a “crime in the making” but rather “it is worth considering if this is a crime in the making.” It is a subtle distinction to be sure. Notably, the article linked on the blog also described his posting as saying “that if Trump were to follow through on his threat it would likely constitute a crime under federal law.”  The point is the same.  Shaub was relying, again, on a clearly frivolous foundation of this tweet for such a serious allegation. 

Notably,  as reported in the same article, Steve Vladeck also tweeted:  “@waltshaub notes, federal law makes it a *crime* to hold out appropriations in order to intererfere with individuals’ exercise of their right to vote.”

Steve Vladeck

@steve_vladeck

As @waltshaub notes, federal law makes it a *crime* to hold out appropriations in order to intererfere with individuals’ exercise of their right to vote:https://www.law.cornell.edu/uscode/text/18/598 

View image on Twitter

Shaub does not call those interpretations of his statements as misrepresentations or address the clear import that there is a serious criminal allegation to be addressed. More importantly, he does not defend the clearly sensational claim in his use of the tweet.

VLADECK RESPONSE
Vladeck also responded on Twitter:
Vladeck insists that I misrepresented his tweets. He fails to mention that the tweets were presented in full in the original blog.  He then goes to his main objections.

Steve Vladeck
@steve_vladeck

Replying to

Turley’s first objection is to the third point in this tweet. He claims I wrote that the suggestion in Trump’s tweet *itself* is unconstitutional—even though all I said was that Trump had “threaten[ed] *action* that would itself be unconstitutional.”
Vladeck omits that I specifically addressed the claim of the underlying action.  The whole point of the blog was that this action could easily be lawful because Trump did not say what funds would be withheld. Moreover, Trump said “I will ask to hold up” funding. Thus, he could be referring to funds that are discretionary in their distribution or he may be suggesting asking Congress to withhold such funds.  Either could be constitutional.  I then stated ” Yet, Vladeck is able to immediately declare the suggestion to be unconstitutional on its face.” Vladeck just chooses to pretend that the blog only addressed the tweet and not the underlying action that he immediately claimed to unconstitutional and illegal.
Vladeck also states
“Turley doubles down in going after a second tweet of mine, which he describes as arguing that Trump’s “tweet was not just unconstitutional but illegal.” Again, I think it’s clear I was describing the proposed *withholding of funds,* not the tweet itself.”
Again,  Vladeck ignores the repeated point.  I was also addressing the proposed withholding of funds, but specifically the fact that he said he would “ask” for such withholding of funds.  Valdeck again omits the key language. If Trump or anyone is to be accused of suggesting a criminal and unconstitutional course of action, the actual language would seem material to that analysis.  I do not know what Trump was contemplating but the language does not allow such a clear cut declaration of criminality from this description.
What Trump described could be legal or illegal. There was no basis to assume that the action would be illegal based on the tweet.  Instead of addressing that fact, Vladeck narrows the question to whether tweeting alone would be a crime. The point is that the tweet was suggesting a course that was not, as stated by Vladeck, clearly clearly unconstitutional or criminal.  Yet, he immediately tweeted out yet another crime in the making.
Finally, Vladeck states
“This may seem like semantics, but Turley’s bottom-line is that folks like me are seeking to criminalize the President’s *speech*, and will reap the consequences in a future administration. I don’t think either of the tweets I sent can fairly be read as supporting his claim.”
You can read for yourself but I never stated or suggested anything about a future administration. My issue is with the hair trigger analysis where experts assume that every tweet is describing a criminal course of conduct.  If the entire blog was only on the tweet itself and not the underlying action, I would not have gotten into the different possible forms or scenarios that such withholding of funds could take.
Again, at no point does Vladeck address that fact that the action described in the tweet (and declared unconstitutional and illegal) could be entirely constitutional and legal. There was no basis to declare that the “threatened action” was unconstitutional and illegal.  While some like Signorelli described the tweet as part of an extortion crime, Vladeck was telling readers that such action would be clearly unconstitutional and criminal when it would not be.  There was not even a recognition that the action of withholding funds could be entirely lawful.  Indeed, his response seems to restate that assertion that any withholding would be per se unconstitutional and unlawful which is clearly untrue in my opinion.

114 thoughts on “No, Trump Did Not Commit A Crime In Threatening To Withhold Funds From Michigan [Updated]”

  1. If Trump’s reason for threatening to withhold funds allocated by Congress to go to Michigan was to curtail the right to vote, it is A FEDERAL FELONY. As it turns out, all that MI voters were sent were applications to vote absentee, but Trump thought they were actual ballots and his motive is clear. JT keeps trying to provide talking points to mitigate Trump’s incompetence and illegal behavior.

  2. Turley’s errors turn out to be even worse. See Shaub’s responses to Turley’s “update” along with tweets about 4 other lawyers noting that Turley has recently mischaracterized their work:
    twitter.com/waltshaub/status/1263579578397634560

    Here’s the response from Steve Vladeck: twitter.com/steve_vladeck/status/1263488985827024896

    The other 3 are Harry Litman (I copied his response into the column on Turley’s criticism of Litman’s op-ed), Elie Honig (@eliehonig), who tweeted “@JonathanTurley did this to me in Washington Post a couple months ago too. Named me in his piece, never @ me, got my argument and the law dead wrong to boot,” and Randall Eliason, who gave an example from November: twitter.com/RDEliason/status/1198620555504738304

    And I criticized Turley recently for misrepresenting Samantha Power’s testimony. He simply doesn’t take care with what people have said (interpreting it in context, making sure that he’s going to the primary source instead of relying on a secondary source’s description, …). It’s shoddy work and he should know/do better.

    1. Yeah Commit, JT”s a nationally recognized scholar called to testify before Congress and you’re an anonymous twit commenter with no credentials carping at his feet. We’ll take your analysis over his. Lol

      1. You think the pseudonymous twit might be a 1st degree relative of another of our pseudonymous twits?

      2. Ad hominem is a common fallacy: https://www.iep.utm.edu/fallacy/#AdHominem
        Do you have a non-fallacious response?

        Do you care that he’s mischaracterizing what people have said? (BTW, since you seem to care about credentials more than evidence, at least one of those people noting Turley’s errors is also “a nationally recognized scholar called to testify before Congress.”)

    2. As noted commit, JT repeats the same simple falsehoods over and over and now we have multiple examples of attorneys claiming and demonstrating his misrepresentation of their positions – something easily spotted without prompting in his Litman attack. We also his apparent unwillingness to engage directly with those he calls out, going so far as to quote 3rd party summarizations of their views as if they were quotes. I think some of us try to be more careful as anonymous posters on a comments page hardly read by anyone than he does his columns and tweets.

      Embarrassing.

  3. You do appear to have misrepresented the position that Walter Shaub took, and continue to do so, by referencing him and then quoting in detail someone where Shaub himself appears to have found fault with the argument.

    By now, you really should be quoting Shaub rather than paraphrasing him and quoting others.

    Here’s Shaub’s response to the argument you’re actually responding to, which raises questions about the argument:

    “It seems like it would be worth discussing this law in the context of a threat to withhold appropriations to restrain voting by mail during a pandemic. Even without the pandemic, there are people who can’t vote in person, and the problem is magnified in this time.”

    Note that the above doesn’t assert that the threat is illegal under the statue. And the statue covers uses of appropriations. Then Shaub also points out a gap in the argument that would need to be plugged:

    “This law talks about blocking a voter. But it’s hard to understand how a specific voter could be targeted by withholding programmatic funds. That makes me wonder if it can be interpreted as covering attempts to block whole classes of voters, like those in a swing state.”

    There’s one part of your post which sounds correct: “he does not defend the clearly sensational claim in his use of the tweet” — in fact, he appears to question it, while not excluding the possibility that using relief appropriations to influence or affect voters’ behavior could be a crime. Shaub does not appear to have “declared this a crime in the making” — and after he called out your incorrect characterization, it seems the least you could have done is the courtesy of quoting him rather than paraphrasing him in a condescending way (“it is unfair”). What he actually said in the tweet to which you linked didn’t include the word unfair at all:

    “Political analyst @JonathanTurley has misrepresented what I wrote in a tweet thread. Evidence suggesting he knew his statement was false is that he showed images of other people’s tweets he cited. He should issue a correction, even if the truth doesn’t serve his partisan aim.”

    1. You do appear to have misrepresented the position that Walter Shaub took,

      No, Shaub made a whiny complaint that Turley misrepresented him.

    2. Ed K, it’s disturbing to consider that someone who you thought you merely disagreed with is also dishonest.. I have been noting for awhile JTs habit of repeatiing known falsehoods – he has 3 or 4 that he wears out and which don’t reach the level of differences of opinion, but are clear misstatements of fact. With these attacks based on misrepresenting opinions – Litman’s yesterday was particularly gross – one wonders if he even believes what he writes.

  4. So how is it Constitutional? The Election Clause clearly gives the states the right to run the election for their state.

    1. So, federal highway funding is illegal (extortion) when it requires states to set specific speed limits or lose funding?

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