President Trump’s ongoing battle with the National Football League over the “take a knee” controversy has raised new questions about possible criminal violations. At a rally in Alabama and then in a series of tweets, Trump suggested fans should boycott the NFL and that team owners should fire players who protest during the national anthem.
Trump’s actions quickly led to claims that his pressure on the NFL might be illegal. Particular attention focused on a relatively obscure law, 18 U.S.C. 227, which makes it a crime for a public official to wrongfully seek to influence an employment decision or practice by any private entity. Critics charged that Trump, by urging NFL owners to fire the protesting players, may have run afoul of this statute.
It is at least clear that this law does apply to the president. But don’t expect special counsel Robert S. Mueller III to add this particular offense to his already hefty playbook of potential charges.
The statute provides:
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.
There are two main obstacles to applying this law to Trump’s attacks on the NFL and its players. First is the requirement that the public official is acting “solely on the basis of partisan political affiliation.” It’s hard to imagine how a prosecutor would prove this beyond a reasonable doubt. Many of the NFL owners supported Trump and donated millions to his campaign or inauguration festivities. Trump’s actions seem designed more to fire up his base than to strike out against NFL owners or players based on their political ties. And the statute requires that partisan affiliation be the official’s sole motivation, not merely one of several factors.
The second issue is that the statute applies only if the official seeks to influence private employment decisions by taking or threatening an “official act” or influencing another to do so.
This statute appears in the same chapter of the criminal code as the federal bribery law, which defines “official act.” In the 2016 decision involving former Virginia governor Bob McDonnell, the Supreme Court held that “official act” has a very narrow and specific meaning. Recent court decisions reversing the convictions of New York politicians Dean Skelos and Sheldon Silver on “official act” grounds have highlighted the importance of this requirement.
If Trump threatened to withdraw federal funds from the NFL or to take some other specific executive action if the NFL did not fire the players, that might fit the statute’s requirements. But merely tweeting his disapproval and jawboning about the protests are not “official acts” under the McDonnell standard.
This rush to indict Trump on Twitter is part of an unfortunate trend where every new outrage is seen as a potential crime. My students tire of hearing me say this, but there is plenty of bad, immoral or unethical behavior that is not criminal. Sometimes other types of sanctions are appropriate. And when it comes to public officials, sometimes the only remedy for misconduct is at the ballot box. With Puerto Rico, North Korea and many other issues being worthier of his time and attention, Trump’s attacks on the NFL and its players seem wildly inappropriate. But they’re not criminal.