At a rally in Wilkes-Barre, Pa., President Trump said this:
[H]ow courageous were our justices of the United States Supreme Court? What they did—they’re saving our country. They’re actually saving our country….
And I just have such respect for the job they’ve done against—and, you know, the radical left plays the ref. You know the great Bobby Knight? He supported me. He used to fight with the referees all the time. Scream at him, “Bobby, Bobby, please, don’t do that.” It’s not going to work. He said, “You’re right. It’s not going to work now.” It’s going to work for the next one. And the next call, there’d be a flagrant foul, and they wouldn’t call it. They didn’t want to get screamed at.
The radical left harasses our judges and harasses our justices. They scream at them. They call them names. They say they’re incompetent, they’re horrible, they’re this, they’re that, they should be impeached. They’re constantly saying they should be impeached. But they’re screaming. And you know what? It has an effect on some people.
But so far, they’ve been very strong. It’s really horrible. I believe it’s illegal what they do. And it’s a—I’m trying to give you things that you’ve never heard before, and this is true. I believe they are playing the ref. They’re constantly criticizing our great—some of our greatest justices and a lot of great judges.
You know, I kept hearing so much about the Florida case because, you know, they weaponized our system, our government, totally weaponized. The first time it’s ever happened. And they said, “My biggest case is in Florida, Florida, Florida.” And we had a very brilliant—I don’t know the judge—but a fair and very brilliant judge who took tremendous abuse. It would have been so easy for her to just rule against me. But she didn’t do that.
She ruled for—she threw out the whole case. It was thrown out. That was a big case. And I have such respect for her—— because she is, in fact, brilliant. But they were hitting her so hard. She’s going too slow. She’s that. She should be removed immediately from office.
These people are horrible. I really think—I really think it’s illegal what they do with judges and justices. They’re playing the ref no different than Bobby Knight….
[W]e can’t let these radical left thugs constantly scream at our judges and say, we’re going to impeach him, we’re going to take him out of office, or her. We’re going to do horrible things to him. Continuous—when you heard Schumer get up on the stairs of the courthouse, Supreme Court, and talk about, “Kavanaugh, we’re going to get you, Kavanaugh. We’re going to hit you,” or whatever the hell he said. If a mobster said that, they’d be put in jail immediately. He, frankly, should have been put in jail or certainly spoken to very strongly….
Now there’s a lot going on here:
[1.] Obviously, simply “criticizing” judges is constitutionally protected under modern First Amendment law (fortunately for Trump, who has shown little hesitation in criticizing judges). That wasn’t always so: During much of American history, judges punished people for “contempt of court” for their public statements that were seen as aimed at influencing court decisions. But in the mid-1900s, the Court made clear that such statements couldn’t be punished, at least unless they involved threats of violence and the like (see, e.g., Bridges v. California (1941)).
[2.] Equally obviously, threats of criminal attack aimed at influencing judges—if a mobster did say “we’re going to get you,” which would likely be construed as involving physical “getting” rather than just political—can be punished, with no First Amendment problem.
[3.] Public calls for impeachment, by ordinary citizens, are also constitutionally protected, because they are calls for government action.
[4.] But here’s the most interesting question: Could threats of impeachment by legislators or legislative leaders be criminally punished when they are aimed at influencing the judges’ future votes? I think the answer is definitely “no,” but the path to that answer is an interesting one—and it goes through a case involving, of all people, Trump’s former Secretary of Energy, Rick Perry.
Let’s step back a bit, and note why this is an interesting question. Say that an employer threatens employees that he will fire them if they vote in ways the employer disapproves of. Such threats (and such firing itself) are illegal in all states, and indeed a crime in many.
Likewise, say that an employer threatens an employee, who is also a part-time elected city council member, with firing if the employee votes on the city council in ways the employer disapproves of. I think many of the state statutes that bar firing employees based on their political activity would outlaw that, and constitutionally so. See also Wyo. Stats. § 22-26-116, which expressly forbids an employer’s using employment actions “attempting to control such employee’s vote on any question at any public election, or in any public position or board or in any office to which such employee may be appointed or elected.”
Or say that an employer threatens an employee with being fired if the employee votes in a particular way while on a jury—or if the employee is a part-time judge, and renders a particular decision as a judge. I think that too can be criminalized, and is probably already criminal obstruction of justice or juror intimidation in many jurisdictions. (Indeed, many states expressly bar employers from using the threat of firing and similar threats to keep an employee from serving as a juror; federal law does the same with regard to service as a juror in federal cases. Surely employers can equally be barred from using such threats to influence the employee’s vote as a juror.)
Nor is this limited to threats to do something illegal: If someone threatens a juror or a judge with disclosure of some embarrassing secret (e.g., an affair) if the juror or judge votes a particular way, that would be criminally punishable blackmail (to oversimplify slightly). Indeed, offering someone a job to induce him to vote a particular way as a judge or juror would be criminal bribery. Threatening to eject someone from a job to induce him to vote a particular way as a judge or juror could be criminally punishable, too.
Well, one might say, members of Congress threatening a judge with impeachment are just like employers threatening one of their employee who is a judge with being fired. Why then can’t that be outlawed? For an answer, we can look at Ex parte Rick Perry, a 2016 case from Texas’s high court for criminal matters. (Disclosure: I argued on behalf of amici in the case.)
In that case, Perry was prosecuted because, while governor, he threatened to veto (and did veto) a particular appropriation if an Austin DA, Rosemary Lehmberg, refused to resign. Lehmberg had pleaded guilty to drunk driving, so Perry argued that she was unfit for office; but Perry’s critics argued that Perry’s real motivation was that Lehmberg had been prosecuting his political allies. In any event, Perry was prosecuted on the theory that he had “intentionally or knowingly influenced or attempted to influence … Lehmberg … in the specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities as the elected District Attorney.” The relevant statute stated, in effect,
A person commits an offense if by means of a threat, however communicated, to take or withhold action as a public servant, he influences or attempts to influence a public servant in a specific performance of his official duty.
On its face, the statute applied to Perry’s threatened veto. And the statute would also indeed punish a legislator for expressly or implicitly threatening to impeach a judge if the judge votes a particular way—”a threat … to take … action as a public servant” that “attempts to influence a public servant [the judge] in a specific performance of his [the judge’s] official duty.”
But that can’t be right, I think (see this amicus brief that I had co-filed in the case, together with Prerak Shah and then-lawyer Jim Ho, and see also this post). And the Texas court agreed, holding that the statute was unconstitutionally overbroad:
[P]ublic servants have a First Amendment right to engage in expression, even threats, regarding their official duties…. [T]he fact that speech is coercive does not, alone, mean that it can legitimately be proscribed: “[s]peech does not lose its protected character … simply because it may embarrass others or coerce them into action.” And political logrolling—which involves the swap of one authorized official act for another—”has never before been condemned as extortion.” …
Unconstitutional Applications Are Many
As we have explained, public servants have a First Amendment right to engage in expression, even threats, regarding their official duties…. [Yet under this statute, m]any threats that these public servants make as part of the normal functioning of government are criminalized:
a threat by the governor to veto a bill unless it is amended, a threat by the governor to veto a bill unless a different bill he favors is also passed, a threat by the governor to use his veto power to wield “the budget hammer” over a state agency to force necessary improvements, a threat by the comptroller to refuse to certify the budget unless a budget shortfall is eliminated, a threat by the attorney general to file a lawsuit if a government official or entity proceeds with an undesired action or policy, a threat by a public defender to file, proceed with, or appeal a ruling on a motion to suppress unless a favorable plea agreement is reached, [a] threat by a trial judge to quash an indictment unless it is amended.
I think the same reasoning applies even to an explicit threat (“Vote to uphold this law, or we will impeach you”), and certainly to an implicit threat that tries to “work the refs.” Members of Congress have the constitutional power to choose to impeach a judge. Under longstanding American legal tradition, they do not exercise that power based just on the judge’s decisions, but they may break with tradition, and may threaten to break with that tradition. The protection against such impeachments is political (both the requirement of 2/3 vote in the Senate to remove a judge, and the possible voter pushback against a party that is seen as trying to influence the courts this way), not judicial. Likewise, the protection against threats of such impeachments comes from the integrity of the judges and the potential for voter retaliation against the politicians, not from the possibility of criminal punishment for the threat of impeachment.
The same of course applies to other situations. An employer’s telling an employee who is a part-time city council member “Quit the city council, or I’ll fire you” may be criminalized. But if a Vice-President and several Cabinet officials tell the sitting President, “Resign, or we’ll invoke the Twenty-Fifth Amendment to force you to step aside,” that can’t be made a crime. And the list could go on, as the Perry opinion suggests.
To be sure, I should acknowledge that some of the lines here can be hazy. What constitutes punishable blackmail and what is protected speech, for instance, is famously complicated to decide. Even the definition of bribery can be quite vague around the edges. And, as I noted, ordinary employers generally may not trying to influence their employee-judges with the threat of firing. But I think it’s quite clear, as Ex parte Perry concludes, that government officials have broad latitude to threaten official action in order to pressure other government officials—and that would apply, I think, to threatening impeachment.
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