Had He Been a Democrat, He’d Probably Be Hiring A Criminal Attorney
More specifically, Robertson said, “You know, I don’t know about this doctrine of assassination,” referring to the American policy since the Presidency of Gerald Ford against assassination of foreign leaders, “but if he [Chavez] thinks we’re trying to assassinate him, I think that we really ought to go ahead and do it. It’s a whole lot cheaper than starting a war, and I don’t think any oil shipments will stop.”
“We have the ability to take him out,” Robertson continued, “and I think the time has come that we exercise that ability. We don’t need another $200 billion war to get rid of one, you know, strong-arm dictator. It’s a whole lot easier to have some of the covert operatives do the job and then get it over with.”
Robertson found himself in the middle of a media firestorm. He initially denied he’d called for Chavez to be killed, and claimed he’d been misinterpreted, but in an age of digital recording, Robertson could not flip-flop his way out of his own statement. He said what he said.
By Wednesday, Robertson was backing down:
“I didn’t say ‘assassination.’ I said our special forces should ‘take him out,'” Robertson claimed on his Wednesday show. “‘Take him out’ could be a number of things including kidnapping.”
No one bought that explanation, either. So Robertson quietly posted a half apology on his website. It is only a half apology because it is clear he really does not mean to apologize, but rather, still seeks to rationalize and justify his dastardly comment.
From the moment I heard Robertson’s remark, on the radio, I thought of the federal criminal statutes prohibiting such threats. Do they apply?
For me, the answer is yes. Indeed, had these comments been made by a Dan Rather, a Bill Moyers, or Jesse Jackson, it is not difficult to imagine some conservative prosecutor taking a passing look at these laws – as, say, Pat Robertson might read them — and saying, “Let’s prosecute.”
The Broad Federal “Threat Attempt” Prohibition Vis-a`-vis Foreign Leaders
Examine first, if you will, the broad prohibition against threatening or intimidating foreign officials, which is a misdemeanor offense. This is found in Title 18 of the United States Code, Section 112(b), which states: “Whoever willfully — (1) … threatens … a foreign official …, [or] (2) attempts to… threaten … a foreign official … shall be fined under this titled or imprisoned not more than six months, or both.”
The text of this misdemeanor statute plainly applies: No one can doubt that Robertson “attempted” to threaten President Chavez.
Yet the statute was written to protect foreign officials visiting the United States – not those in their homelands. Does that make a difference?
It would likely be the precedent of the U.S. Court of Appeals for the Fourth Circuit that would answer that question; the Fourth Circuit includes Virginia where Robertson made the statement. And typically, the Fourth Circuit, in interpreting statutes does not look to the intent of Congress; it focuses on statutory language instead.
And in a case involving Robertson, to focus on language would only be poetic justice:
Robertson, is the strictest of strict constructionists, a man who believes judges (and prosecutors) should enforce the law exactly as written. He said as much in his 2004 book, Courting Disaster: How the Supreme Court Is Usurping The Power of Congress and the People.
Still, since the applicability of this misdemeanor statute is debatable, I will focus on the felony statute instead.
The Federal Threat Statute: Fines and Prison For Threats to Kidnap or Injure
It is a federal felony to use instruments of interstate or foreign commerce to threaten other people. The statute is clear, and simple. Title 18 of the United States Code, Section 875(c), states: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” (Emphases added.)
The interstate or foreign commerce element is plainly satisfied by Robertson’s statements. Robertson’s 700 Club is listed as broadcasting in thirty-nine states and the District of Columbia, not to mention ABC Family Channel satellites which cover not only the United States but several foreign countries as well. In addition, the program was sent around the world via the Internet.
But did Robertson’s communication “contain” a “threat” to “kidnap” or “injure” Chavez?
First, Robertson said he wanted to assassinate President Chavez. His threat to “take him out,” especially when combined with the explanation that this would be cheaper than war, was clearly a threat to kill.
Then, Robertson said he was only talking about kidnapping Chavez. Under the federal statute, a threat to “kidnap” is expressly covered.
As simple and clear as this statute may be, the federal circuit courts have been divided when reading it. But the conservative Fourth Circuit, where Robertson made his statement, is rather clear on its reading of the law.
Does Robertson’s Threat Count As A “True Threat”? The Applicable Fourth Circuit Precedents Suggest It Does
If Robertson himself were a judge (or prosecutor) reading this statue — based on my reading of his book about how judges and justice should interpret the law — he would be in a heap of trouble. But how would the statute likely be read in the Fourth Circuit, where a prosecution of Robertson would occur?
Under that Circuit’s precedent, the question would be whether Robertson’s threat was a “true threat.” Of course, on third reflection, Robertson said it was not. But others have been prosecuted notwithstanding retractions, and later reflections on intemperate threats.
Here is how the Fourth Circuit — as it explained in the Draby case — views threats under this statute: “Whether a communication in fact contains a true threat is determined by the interpretation of a reasonable recipient [meaning, the person to whom the threat was directed] familiar with the context of the communication.”
This is an objective standard, under which the court looks at the totality of the circumstances surrounding the communications, rather than simply looking to the subjective intent of the speaker, or the subjective feelings of the recipient. So even if Robertson did not “mean” to make a threat, and even if Chavez did not “feel threatened,” that is not the end of the story.
In one Fourth Circuit case, the defendant “asked if [the person threatened] knew who Jeffrey Dahlmer [sic] was.” Then the defendant added that, “he didn’t eat his victims, like Jeffrey Dahlmer; [sic] that he just killed them by blowing them up.” This defendant’s conviction for this threat was upheld.
In another Fourth Circuit ruling, the defendant, an unhappy taxpayer, was convicted for saying, to an IRS Agent, that “in all honesty, I can smile at you and blow your brains out”; that “once I come through there, anybody that tries to stop me, I’m going to treat them just like they were a cockroach”; and, that “unless I can throw somebody through a damn window, I’m just not going to feel good.”
Viewed in the context, and taking into account the totality of the circumstances, it was anything but clear that any of these threats were anything more than angry tough talk. The same could be said of Robertson’s threats. Yet in both these cases, the Fourth Circuit upheld the defendant’s conviction, deeming the “true threat” evidence sufficient to do so.
For me, this make Robertson’s threats a very close question. President Chavez publicly brushed Robertson’s threats off, for obvious diplomatic reasons, yet I suspect a little inquiry would uncover that the Venezuelan President privately he has taken extra precautions, and his security people have beefed up his protection. Robertson has Christian soldiers everywhere. Who knows what some misguided missionary might do?
If you have not seen the Robertson threat, view it yourself and decide. Robertson’s manner, his choice to return to the subject repeatedly in his discourse, and the seriousness with which he stated the threat, all strike me as leading strongly to the conclusion that this was a true threat. Only media pressure partially backed him off. And his “apology” is anything but a retraction.
Will Robertson be investigated or prosecuted by federal authorities? Will he be called before Congress? Will the President, or the Secretary of State, publicly chastise Robertson? Are those three silly questions about a man who controls millions of Republican votes from Christian conservatives?
John W. Dean, a FindLaw columnist, is a former counsel to the president.
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