Early during President Trump’s election victory and Administration — back before it was clear that everything and everyone he encounters crumbles to ash — much hullabaloo was raised about his supposed ability to issue a tweet and influence a company at will. That’s just how good his deal-making abilities were thought to be. Even before he got in office, he got Carrier to strike a deal that would keep 1,100 jobs in Indiana. He criticized the costs of Air Force One and the F-35, and Boeing and Lockheed Martin allegedly pledged to slice some cost from the contracts for fear their stock prices would tank. As recently as the President’s remarks on the Charlottesville protests, there were concerns from CEOs that leaving the American Manufacturing Council would result in the same sort of backlash the President directed at Kenneth C. Frazier, CEO of Merck.
Since then, however, it’s become clear that these deals were illusory and that the President’s influence goes only so far. Carrier, for example, announced in June that 600 manufacturing jobs would be leaving. Boeing, seemingly in shrewd exchange for cost-cutting on Air Force One, found itself receiving $349 million additional funding for new ICBMs; Lockheed Martin, however, did not receive funding for that program. Cry not for Lockheed Martin, though, as it received a $900 million contract for nuclear cruise missiles. And once it became clear that the President sided more with white supremacists than he did those opposing white supremacists, the President shuttered the American Manufacturing Council and the Manufacturing Jobs Initiative to avoid the embarrassment of having the remaining CEOs quit en masse.
Taking on #TakeAKnee and the NFL
For whatever reason, at a campaign event on behalf of Alabama Senate candidate Luther Strange, the President decided to take on NFL players who have decided to take a knee during the playing of the National Anthem in a sign of protest against police brutality and injustice directed at African-Americans.
38 minutes into his rambling speech, just after talking about border security and bureaucracy, the President turned to the NFL.
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But, Luther shares our convictions. Shares our vision. And maybe most important, he shares our agenda. Remember. He’s going to win the race. He’s going to win the race. And I’m not talking here. I’m talking against the Democrat. Which starts very quickly. But it’s why we need each and every one of you to get a friend. Go out, get a family member, get the whole family, and bring them out, to vote for Big Luther. Strange. Gotta vote for him. Big Luther.
Luther and I and everyone in this arena tonight are unified by the same great American values. We’re proud of our country. We respect our flag. Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say ‘get that son of a bitch off the field, right now, out, he’s fired.’ He’s fired!
You know, some owner’s gonna do that. He’s gonna say, ‘that guy that disrespects our flag? He’s fired.’ And, that owner, they don’t know it. They don’t know it, they’re friends of mine, many of them. They don’t know it. They’ll be the most popular person, for a week, they’ll be the most popular person in this country. Because that’s a total disrespect of our heritage. That’s a total disrespect of everything that we stand for. Okay? Everything that we stand for.
And I know, we have freedoms and we have freedom of choice and many, many different freedoms. But you know what? It’s still totally disrespectful.
And you know, when the NFL ratings are down massively. Massively! The NFL ratings are down massively. Now, the number one reason happens to be that they like watching what’s happening on … you know? With yours truly. They like watching what’s happening.
Because, you know, today, if you hit too hard, right? They hit too hard? ’15 yards! Throw him out of the game!’ They had that last week. I watched for a couple of minutes. Two guys just really beautiful tackle. ‘Boom! 15 yards!’ The referee gets on television, his wife is sitting at home, she’s so proud of him. They’re ruining the game! Right? They’re ruining the game. Hey look, that’s what they wanna do. They want to hit. Okay? They want to hit, but it is hurting the game.
But you know what’s hurting the game more than that? When people like yourselves turn on television and you see those people taking the knee when they’re playing our great national anthem. The only thing you could do better is if you see it even if its one player, leave the stadium, I guarantee things will stop. Things will stop. Just pick up and leave. Pick up and leave.
Not the same game anymore anyway.
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The Backlash
Backlash to those three minutes of speech was swift, and by Saturday morning, the drama had taken over Twitter. The hash-tag #takeaknee became a thing. In a weird roundabout way, the President revoked Stephen Curry’s invitation to the White House because Curry said he wasn’t sure he wanted to visit. LeBron James called the President a bum. The President tweeted about the NFL players needing to be fired or suspended, and that the NFL should change league regulations. The Golden State Warriors as a team declined the invitation to the White House. He tweeted about the NFL some more.
By Sunday morning, the NFL and individual teams had issued statements supporting players’ right to express themselves, and the vast majority of NFL teams (if not all of them) had organized some way to stand or kneel in support of their teammates who had previously taken knees. Oftentimes, owners joined the players.
Monday night, the Dallas Cowboys–Jerry Jones included–decided to kneel at midfield prior to the playing of the National Anthem. The crowd booed the team nonetheless even though the team stood during the Anthem. This morning, the President responded to the Cowboys’ pre-Anthem kneeling.
The booing at the NFL football game last night, when the entire Dallas team dropped to its knees, was loudest I have ever heard. Great anger
— Donald J. Trump (@realDonaldTrump) September 26, 2017
Acknowledging the boos, the President ended up highlighting the overwhelming evidence that the criticism was never really about respect for the Anthem all along. Whether someone pointed this out to him or not, 12 minutes later, he followed that tweet with the following:
But while Dallas dropped to its knees as a team, they all stood up for our National Anthem. Big progress being made-we all love our country!
— Donald J. Trump (@realDonaldTrump) September 26, 2017
This tweet was more in line with what he tweeted (OMG, it’s so ridiculous that when future historians write about this era, they will have to say stuff like that) over the weekend.
He then moved on to tweet about Big Luther again, about Otto Warmbier, a little about Puerto Rico (finally), and then, out of nowhere, he tweeted:
The NFL has all sorts of rules and regulations. The only way out for them is to set a rule that you can’t kneel during our National Anthem!
— Donald J. Trump (@realDonaldTrump) September 26, 2017
A Whole Different Kind of Threat
That tweet contains language that comes dangerously close to violating 18 U.S.C. § 227. My wife happened to send me a link to this statute over the weekend (thanks, Beth!), and while I initially downplayed its applicability (sorry!) it’s stuck in my head ever since. The statute itself is very simple:
(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.
A covered government person, in this case, is clearly the President.
All but one of these elements are clearly present in the President’s comments from Friday and continuing forward. The President is a covered government person. He is clearly intending to influence an employment decision or employment practice (he’s telling teams to fire players who kneel during the Anthem). And he is clearly threatening to take or withhold an official act. That is, his tweet this afternoon, where he says “the only way out” for the NFL is for the NFL to change rules and regulations. “The only way out” can only mean “the only way out of my continued criticism and calling for a boycott.” In other words, he is saying “I will continue to issue official statements and advocate for a boycott of your league,” (his tweets are official statements) “unless you change your rules to forbid kneeling.”
Influence and Partisan Political Affiliation
“Solely on the basis of partisan political affiliation” is the only requirement that is not met. I cannot find one reported case that addresses this statute. Not one. It is therefore pretty difficult to determine how the statute should be parsed. How does “solely on the basis of partisan political affiliation” modify the intent to influence? In other words, whose political affiliation is important here?
Is it Scenario 1, where Person A, who is a Purple Party member, tries to influence the employment practices of XYZ Corp. solely because Person A is a Purple Party member? Or is it Scenario 2, where XYZ Corp.’s affiliation with the Chartreuse Party is what ultimately matters? Or is it both? Does my confusion mean that the statute is void because it is unconstitutionally vague? These are good questions!
Looking at Trump’s conduct, if Scenario 1 is the guiding light, he is coming perilously close to satisfying that component. If these players were kneeling because they wanted to bring attention to the allegedly high corporate tax rates in the United States, one would suspect that the President would have no criticism of the act. Because these players are trying to bring attention to police brutality, however, and the President and his party as political entities run on a platform that embraces “getting tough on crime” (going so far as to advocating to law enforcement that they can rough up suspects a little if they’d like), one could make the argument that these criticisms are being voiced solely out of the President’s partisan political affiliation.
Now, the counterargument would be that there’s at least one more component–generic “patriotism,” for example–that is at play. And as a defense attorney, you’d pull out all the stops to argue that the official acts are based on everything but politics. It’s an interesting thought exercise nonetheless.
