Monday, October 12, 2020

Michigan Gov. Gretchen Whitmer could be setting the stage to have criminal charges brought against Trump for solicitation of violence against state officials

Gretchen Whitmer

The right-wing militia plot to kidnap Michigan Gov. Gretchen Whitmer probably was a shocker to many Americans, But our "lawyer source," who we quote periodically on legal matters that are national in scope, essentially foresaw such an event six months ago. He also saw the potential legal headaches Donald Trump could attract for inciting such an event. News reports in recent days, our source says, suggest Whitmer is setting the stage to have criminal charges brought against Trump -- and, under the law, she has grounds to do it.

How did our source essentially see this coming? Let's turn to our post of April 21, 2020, with the title "Trump's words of defiance to protesters flaunt federal and state laws, sending a peculiar anti-government message from someone who heads the government": 

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."


Our source then provided legal details behind McCord's words:

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.

          What kind of signals is Whitmer sending? Well, it's clear that she is unhappy about a plot that                  likely put her life, and the lives her colleagues, at risk. Consider this op-ed from Whitmer in                 The  Washington Post:        

When I addressed the people of Michigan on Thursday to comment on the unprecedented terrorism, conspiracy and weapons charges against 13 men, some of whom were preparing to kidnap and possibly kill me, I said, “Hatred, bigotry and violence have no place in the great state of Michigan.” I meant it. But just moments later, President Trump’s campaign adviser, Jason Miller, appeared on national television accusing me of fostering hatred.

I’m not going to waste my time arguing with the president. But I will always hold him accountable. Because when our leaders speak, their words carry weight.

When our leaders encourage domestic terrorists, they legitimize their actions. When they stoke and contribute to hate speech, they are complicit. And when a sitting president stands on a national stage refusing to condemn white supremacists and hate groups, as President Trump did when he told the Proud Boys to “stand back and stand by” during the first presidential debate, he is complicit. Hate groups heard the president’s words not as a rebuke, but as a rallying cry. As a call to action.

What does our source think of Whitmer's words? He thinks she's mad as hell -- and serious -- and she still has reason to be concerned about her safety:

I believe Whitmer is setting the stage so it's no surprise in about six months, after things cool down, when Mich. officials file charges against Trump for criminal solicitation and criminal encouragement of treason and violence against the State of Michigan and its public officials.

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