President Trump's Twitter habit puts him keystrokes away from breaking laws

President Trump’s ongoing attacks on the news media — which continued unabated even on his trip to Europe — have generated much debate. As lawyers with a half-century of civil and criminal litigation experience between us, we believe one aspect of his behavior has gotten too little attention. Like his now infamous conversations with former FBI director James Comey, the president’s tweets come dangerously close to the line separating protected speech from illegal conduct, and may even cross over it. If we were advising him, we would counsel him immediately to stop wandering into areas of potential criminal and civil liability.

The president’s tweet showing him body-slamming CNN can certainly be seen as an attempt to threaten and encourage violence against those who criticize or disagree with his policies. Making threats on the Internet to injure another person is a federal crime punishable by up to five years in prison. While Trump would no doubt claim First Amendment protection for his statements and actions, the Department of Justice has successfully prosecuted people in the past for threatening political statements. For example, the conservative radio host and blogger Hal Turner was convicted and sentenced to nearly three years in jail for saying that a panel of judges deserved to die after they upheld a handgun ban in Chicago.

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Even though it is unlikely the CNN tweet goes quite far enough to generate yet another investigation, the president further erodes the institution of the presidency and his own credibility in the existing investigations when he engages in conduct that even raises the question of whether a criminal law is violated. If the tweet does inspire violence, Trump could find himself a defendant in a civil case for damages — and it wouldn’t be the first time. 

Similarly, the president’s retaliatory tweets against Joe Scarborough and Mika Brzezinski for their critical comments about him also raise troubling legal questions. The president’s tweet purported to disclose that Brzezinski “was bleeding badly from a face-lift” when visiting his resort, and that Scarborough was concerned about a National Enquirer article exposing details about their alleged affair. Scarborough asserted that the president’s office had actually offered to stop the article if they publicly apologized for their criticisms of the president.

It is a crime in New York (where the journalists are based) punishable by up to one year in jail to try to coerce someone to do something by threatening to expose a secret or to damage the person’s business, career or reputation. The president certainly appeared to be using the power of his office to try to force Brzezinski and Scarborough to tone down their criticism of him or face more damaging tweets. While we don’t anticipate a New York state district attorney will initiate a prosecution, here again it is disturbing that the president has even ventured into this minefield.

Least noticed but perhaps most troubling of all was the president’s June 28 tweet attacking Jeff Bezos, who owns The Washington Post and is the founder and CEO of Amazon. Trump stated that “The #AmazonWashingtonPost, sometimes referred to as the guardian of Amazon not paying Internet taxes (which they should) is FAKE NEWS!” The president’s claim that Bezos or his companies are not paying taxes owed is outright false. By last April, Amazon was collecting sales tax on purchases in all states that levy it.

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The tweet creates libel exposure for the president, and many states also have laws that criminalize knowingly making false allegations of criminal misconduct. It also sends an unwholesome signal to his advisers; they are now reportedly mulling whether to punish CNN by blocking a merger involving its parent. The threat of using federal enforcement authority as leverage has echoes of Watergate, and we know how that turned out.

At the end of the day, the president’s tweets so far are not likely to lead to any actual criminal investigation or prosecution. However, each criminal statute or legal standard that can be invoked in response to a tweet by the president represents a standard of unacceptable behavior that causes injury to others and violates societal norms. Because he is treading so close to the line of criminal conduct, the risk is substantial that he could cross it with a future tweet.

Indeed, Trump already finds himself under investigation for obstruction in connection with his contacts with Comey, with his tweets likely serving as part of the evidence. If Trump continues to try to coerce, silence or punish media critics on Twitter, he might find himself confronting another legal question: whether he is immune from prosecution.

Barry Berke is a nationally recognized trial lawyer specializing in all aspects of white-collar crime. Norman Eisen, chairman of Citizens for Responsibility and Ethics in Washington, a senior fellow at the Brookings Institution and a CNN commentator, was chief White House ethics lawyer for President Obama. The views expressed here are solely their own. Follow Eisen on Twitter: @NormEisen

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