On March 16th Saturday Night Live was in a hiatus so NBC aired a rerun from mid-December. The holiday themed rerun included a parody skit inspired by the Christmas classic “It’s A Wonderful Life.” In this version the angel grants Trump’s wish to imagine a world where he is never elected President. Whether it’s funny or not is a matter of individual taste, but you can judge it for yourself.
President Snowflake promptly melted down on Twitter. The meltdown included threats of investigations from the very executive branch that Trump leads.
The President is as entitled as anyone to an opinion that Saturday Night Live is not funny or “no talent.” But he goes too far when invoking the power and majesty of the Presidency to suggest arms of the executive branch he controls be used to investigate a late night comedy show. Doing that at least merits consideration as to whether the President of of the United States committed high crimes and misdemeanors for which he should be removed from office.
This was not an isolated instance. It was the second time in a month that Trump took to Twitter to suggest official actions be taken against Saturday Night Live.
This is part of a patten. Trump had previously attacked First Amendment freedoms by tweeting that the Senate Intelligence Committee should investigate what he deems fake news, and urging changes in the tax code to punish the NFL for not doing more against players exercising their free speech rights.
Trump also argued that the courts should decide whether SNL is guilty of defamation for its comedy skits.
However, I regard those as different because Trump’s attacks, while certainly undermining the First Amendment, involve suggested actions by other branches of government. The most recent tweets urge actions by the FCC and FEC, executive branch agencies under Trump’s own direction. The most recent tweets involve threats that Trump, at least theoretically, has the power to carry out.
I suggest these threats might constitute crimes, impeachable offenses. If so they are aggravated as being part of a pattern of assaults on the 1st Amendment which the President swore an oath to uphold.
18 U.S.C. § 242
I start with 18 U.S.C. § 242, deprivation of rights under color of law, a criminal offense. As described by the Department of Justice website, this statute applies whenever an official acts “under color of law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.” “Under color of law” means “misuse of power” that is “possessed by virtue of law” and “made possible only because the wrongdoer is clothed with the authority” of law. See United States v. Classic, 313 U.S. 299, 326 (1941). While the statute includes deprivations based on race or religion, the DOJ website makes clear that “it is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.”
The credibility of Trump’s threat is made possible only because he is clothed the authority of law empowering him to potentially carry it out. The same threat issued by me would be of no meaning. When made by the nation’s Chief Executive, empowered with enforcing the law through the very agencies he mentions, it is under the color of law.
The color of law element of the offense is clearly met. The question is whether Trump actually did act to deprive rights protected by the 1st Amendment of the Constitution. In that regards it is notable that the White House has stated that Trump’s tweets are “official statements by the President of the United States.” Various courts have accepted the official nature of Trump’s tweets as expressions of, or explanations for, policy.
Even so, it is possible a court would find that unless the FCC or FEC acted on Trump’s tweets to deprive the Saturday Night Live of its Constitutional rights, that this statute is not triggered.
18 U.S.C. § 241
Another statute, however, establishes an offense for merely conspiring against rights, to include mere threats or intimidation. 18 U.S.C § 241 states a criminal offense is committed:
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in anyState, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.”
Thus, the President’s attempts to threaten and intimidate Saturday Night Live for having exercised its free speech rights could fall within this statute. It would not matter that SNL was not actually threatened or intimidated, only that the President conspired to do so.
The obvious problem is that this requires there to have been a conspiracy between two or more persons. Someone else would need to have assisted or planned with the President in regards to this tweet. We do not know if that is true, but the question itself is worth investigating.
The above mentioned investigation might be facilitated by discovery if NBC could sue the President for the potential breach of its 1st Amendment Constitutional rights. 42 U.S.C. § 1983 does confer a civil remedy to those whose Constitutional rights have been denied under color of authority of state law. Unfortunately, this provision applies only to actions by state officials. It does not apply to federal officials such as the President.
However, the Supreme Court’s in Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971) effectively created a similar civil remedy for cases where federal officials deny a Constitutional right under color of law. In Bivens the court held that:
“While there is no explicit right to file a civil lawsuit against federal government officials who have violated the Fourth Amendment, this right can be inferred. This is because a constitutional protection would not be meaningful if there were no way to seek a remedy for a violation of it.”
So far the Supreme Court has only expressly extended the Bivens Doctrine to rights associated with the 4th, 5th and 8th Amendments. However, in Hartman v. Moore, 547 U.S. 250 (2006) the Supreme Court strongly implied that the Bivens Doctrine extended to 1st Amendment violations by federal officials. In the words of the Supreme Court:
Official reprisal for protected speech “offends the Constitution [because] it threatens to inhibit exercise of the protected right,” Crawford-El v. Britton, 523 U. S. 574, 588, n. 10 (1998), and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out, id., at 592; see also Perry v. Sindermann, 408 U. S. 593, 597 (1972) (noting that the government may not punish a person or deprive him of a benefit on the basis of his “constitutionally protected speech”) . . . When the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens.
NBC may have a credible argument for bringing a Bivens action against the President and should consider doing so. It is time the President’s dangerously hateful tweeting against the media had consequences.