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Commentary: Politics as usual, or a federal crime?

Donald Trump has recently pledged to prosecute Hillary Clinton should he become president. But Hillary Clinton can just as easily – more easily in fact – prosecute Trump should she become president.

That’s because Trump has made a public statement that appears to fit squarely within the language of the federal statute criminalizing extortionate threats, 18 U.S.C. Section 875(d), which reads as follows:

“Whoever, with intent to extort from any person . . . any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.”

Take note that the statute does not require that the threat be carried out, or even be capable of being carried out. Commonly understood extortionate threats include demanding money in return for not harming a person or their family. Law enforcement is not required to wait until the threat is carried out or the money changes hands before taking action. Section 875(d) criminalizes the threat; it is not a kidnapping statute where a person is abducted and then ransom is demanded. Nor is the lack of intention to carry out the threat a defense.

Lawyers are familiar with the prohibition against extortionate threats. Lawyers cannot threaten to accuse an adverse party of a crime in order to obtain a favorable resolution of a lawsuit. The lawyer risks disbarment and prosecution; if the client makes the threat, the client faces the risk of criminal prosecution.

It is no crime to actually report another person, even an adverse party, to law enforcement and accuse that person of a crime. You just can’t threaten to do so in the hopes of obtaining anything of value, like the dismissal of a lawsuit. The only threat that can issue from a lawyer’s mouth is one not coupled with a demand for value, with one exception: a demand letter coupled with the threat to sue.

Notice, too, that the threat made criminal under federal law can be to injure the reputation of anyone: the person the threat is made to, any other person, even the reputation of the dead person. That is very broad, and it is intended to be broad.

No bloviating exception

So, what did Donald Trump do to put himself in jeopardy?  He tweeted the following, as reported by Politico on Feb. 22: “I hear the Rickets [sic] family, who own the Chicago Cubs, are secretly spending $’s against me. They better be careful, they have a lot to hide!”

Politico reported that Marlene Ricketts, an owner of the Chicago Cubs, donated $3 million to Our Principles PAC, according to FEC filings. “The PAC – which is run by former Mitt Romney adviser Katie Packer – has a sole goal of taking down Trump,” according to Politico.

Does this constitute an extortionate threat? It depends on what “is” means, to borrow a shorthand reference to Bill Clinton’s defense of some years ago. Politico had no doubt as to what this meant: “Donald Trump is warning the family who owns the Chicago Cubs over spending against him.”

I have heard various explanations as to why Trump should not be prosecuted, but importantly, not a single rationalization is based on the statute or trying to claim that what he said did not fall within its terms. Trump does not get a pass because he is a blowhard. There is no bloviating exception to the statute. Nor does Trump avoid prosecution because he never follows through with his threats (like the preposterous threat to sue Republican presidential candidate Ted Cruz for quoting Trump in an ad) or that he has lied about his threats before (he didn’t sue Cruz after all).

Finally, the “all’s fair in love and politics” explanation does not pass muster. If Trump wanted to retaliate against the Ricketts, he could have distributed whatever derogatory “hidden” information about the family that Trump possessed. He did not do that. He threatened to do it unless they were careful and ceased spending money against him. Trump is a bully, and we might expect bad behavior from him, but a pattern of crude behavior does not qualify as a get-out-of-the-criminal-law-for-free card.

So Hillary Clinton can promise to prosecute Trump, just as Trump has promised to prosecute Hillary. I have a better solution: President Barack Obama should prosecute both of them, ending this sorry mess of a campaign sideshow and bringing a badly needed degree of rationality to the process of choosing our next leader.

And by the way, be assured that I have not demanded anything from Trump in return for not writing this column. I just wrote it.

Arthur F. Fergenson is a former federal prosecutor and senior counsel with Ansa Assuncao LLP in Columbia. He also is a member of The Daily Record’s Editorial Advisory Board; the views expressed in this column are his own.