|Protesters in Michigan|
Donald Trump's recent Tweets, exhorting his followers to "liberate" themselves from state-sanctioned stay-at-home orders during the coronavirus outbreak, likely violate federal law, according to a former official with the U.S. Department of Justice (DOJ). Trump's actions also could violate state laws that criminalize defiance of lawfully issued state orders, a lawyer source tells Legal Schnauzer. That especially might be the case in Virginia, where Trump's Tweet included a reference to protesters' "Second Amendment rights," which could be construed as an incitement to violence.
While Trump clearly is playing dangerous games with the law, he also may be playing a wildly flawed political equation, according to New York Times columnist Maggie Haberman, in a piece titled "Trump, Head of Government, Leans Into Anti-Government Message."
As for lawlessness emanating from the White House, Mary McCord addressed that in an op-ed at The Washington Post. McCord is legal director of the Institute for Constitutional Advocacy and Protection and a visiting professor at the Georgetown University Law Center. She was acting U.S. assistant attorney general for national security from 2016 to 2017. From the McCord op-ed:
President Trump incited insurrection Friday against the duly elected governors of the states of Michigan, Minnesota and Virginia. Just a day after issuing guidance for re-opening America that clearly deferred decision-making to state officials — as it must under our Constitutional order — the president undercut his own guidance by calling for criminal acts against the governors for not opening fast enough.
Trump tweeted, “LIBERATE MINNESOTA!” followed immediately by “LIBERATE MICHIGAN!” and then “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!” This follows Wednesday’s demonstration in Michigan, in which armed protestors surrounded the state capitol building in Lansing chanting “Lock her up!” in reference to Democratic Gov. Gretchen Whitmer, and “We will not comply,” in reference to her extension of the state’s coronavirus-related stay-at-home order. Much smaller and less-armed groups had on Thursday protested on the state capitol grounds in Richmond, Va., and outside the governor’s mansion in St. Paul, Minn.
“Liberate” — particularly when it’s declared by the chief executive of our republic — isn’t some sort of cheeky throwaway. Its definition is “to set at liberty,” specifically “to free (something, such as a country) from domination by a foreign power.” We historically associate it with the armed defeat of hostile forces during war, such as the liberation of Western Europe from Nazi Germany’s control during World War II. Just over a year ago, Trump himself announced that “the United States has liberated all ISIS-controlled territory in Syria and Iraq.”
In that context, it’s not at all unreasonable to consider Trump’s tweets about “liberation” as at least tacit encouragement to citizens to take up arms against duly elected state officials of the party opposite his own, in response to sometimes unpopular but legally issued stay-at-home orders. This is especially so given the president’s reference to the Second Amendment being “under siege” in Virginia, where Democratic Gov. Ralph Northam just signed into law a number of gun-safety bills passed during the most recent session of the state general assembly — bills that prompted protests by Second Amendment absolutists at the state capitol in January, leading Northam to declare a state of emergency and temporarily ban firearms from the capitol grounds due to the threat of violence.
How could Trump's words run afoul of the law? McCord explains:
Trump has a bully pulpit unlike an ordinary citizen. His Twitter account boasts over 77 million followers, but many more see his tweets when they’re retweeted by others, posted on other social media and covered by media outlets. He is prolific, having tweeted more than 50,000 times. And he is influential: his three “liberation” tweets have been retweeted and “liked” hundreds of thousands of times. We are not talking about a typical person when we consider the impact of his statements.
That’s why we can’t write these tweets off as just hyperbole or political banter. And that’s why these tweets aren’t protected free speech. Although generally advocating for the use of force or violation of law is protected (as hard to conceive as that may be when the statements are made by someone in a position of public trust, like the president of the United States), the Supreme Court has previously articulated that where such advocacy is “inciting or producing imminent lawless action and is likely to incite or produce such action,” it loses its First Amendment protection. The president’s tweets — unabashedly using the current crisis to encourage a backlash against lawful and expert-recommended public health measures, falsely claiming a Second Amendment “siege” and calling for insurrection against elected leaders — have no place in our public discourse and enjoy no protection under our Constitution.
Our lawyer source provides details about state insurrection laws, especially from the Code of Virginia, and notes that states are not precluded from prosecuting a sitting president. Writes our source:
It is obvious Trump's tweets to protesters to "liberate" themselves from the "siege" the state governors have ordered was intended by Trump to encourage and incite those protesters (his base) to intimidate state governors. After all, wasn't intimidation of public officials the purpose of the so-called "Brooks Brothers Riot" in Florida in 2000?
You may find it interesting that the Criminal Code of Virginia has several applicable criminal provisions, including mob crime laws and criminal solicitation statutes. Also, the Criminal Code of Virginia defines a criminal "act of terrorism" as an act of violence with the intent to either "intimidate a civilian population at large" or to "influence the conduct or activities of a government, including . . . a state . . . through intimidation." Crim. Code of Va., Section 18.2-46.4. Trump's tweet was not violence; but the message Trump tweeted clearly suggested that Trump was encouraging protesters to act as a mob of public assembly and intimidate state officials to withdraw state orders issued to protect lives and public health. Therefore, if protesters, especially those known to revere Trump, end up forming a mob and engaging in any violence whatsoever, it is absolutely clear that Trump could be criminally prosecuted in Virginia for his public communications (tweets) in which he sought to command, entreat, or otherwise persuade persons to intimidate their state governments and state public officials and to resist execution of lawful state-government orders. If protesters followed Trump's encouragement and assembled, fomented riot, and/ or killed anyone, then Trump could be criminally prosecuted for criminal solicitation to incite riot, unlawful assembly, treason, and terrorism.
Virginia also criminalizes inciting a riot or unlawful assembly.
Finally, Virginia also criminalizes and calls it "treason" for a person to (1) solicit or encourage others to wage war against the Commonwealth of Virginia (e.g., insurrection or riot); or (2) solicit or encourage others to resist the execution of the laws of Virginia under color of its authority. See Crim. Code of Va., sections 18.2-29 and 18.2-481(1) and (5).
The full language from the relevant Virginia law can be found at Title 18.2, Code of Virginia.
As for Trump's political calculations, they might be way off target, too. Writes Maggie Haberman, of The NY Times:
Mobilizing anger and mistrust toward the government was a crucial factor for Trump in the last presidential election. And for many months he has been looking for ways to contrast himself with former Vice President Joe Biden, the presumptive Democratic presidential nominee and a Washington lifer.
The problem? Trump is now president, and disowning responsibility for his administration’s slow and problem-plagued response to the coronavirus could prove difficult. And protests can be an unpredictable factor, particularly at a moment of economic unrest.