(Photo by Win McNamee/Getty Images)
Last week, when Michigan was about to consider certifying its election results, President Donald Trump invited two top Michigan Republican legislators to the White House.
As far as I know, Trump had never before met these guys. The Michigan State Board of Canvassers was due to certify the results of the presidential election on Monday. On the Saturday before that Monday vote, Trump chatted with these two influential gents in the White House.
Kayleigh McEnany, paid public money to serve in a public position to tell Americans what’s happening in the White House, said this about the meeting:
This is not an advocacy meeting. There will be no one from the campaign there. He routinely meets with lawmakers from all across the country.
Well, Donald Trump is “from the campaign.” And he’s attending the meeting. And this meeting strikes me as anything but routine — in the sense that nothing like this had ever before happened in the history of the world. But maybe I’m too suspicious.
Anyway, Trump met with the two Michigan Republican legislators. The Michigan State Board of Canvassers ultimately voted to certify the election results, with one Republican voting in favor of certification and the other abstaining.
My question is this: Depending on what Trump said during that meeting, could Trump be prosecuted for some type of electoral coercion?
I naturally checked the statute books, and I found 18 U.S.C. Section 600:
Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both.
I read this section.
I started at the beginning. I was honestly curious about the law. I slowly made my way through the sentence. I got to the period at the end. And I hadn’t been edified.
Just as I’m not sure that I believe in paying money to public spokepeople who seemingly lie to us, I’m not sure that we should pay legislators (or their staffs) who write this crap. Whatever this statute means, surely there’s a way to express it in words that a human being of average intelligence could understand.
On reflection, I also thought that this crime would be terribly difficult to prove. Unless one of the people at the meeting was wearing a wire, you’d surely be in a “he said, she said” situation. One person who attended the meeting would say that he had been “promised … compensation;” the other person attending the meeting would deny this; and the jury would probably acquit for lack of proof beyond a reasonable doubt.
My last thought was that this law surely ensnares people that we don’t think did anything criminal. Suppose, for example, that your name was Dwight Eisenhower. In the days before primaries chose the party’s nominee, you needed the California delegation to support you to become the Republican nominee for president. So you promised, directly or indirectly, the junior senator from California — Richard Nixon — the vice presidency if he delivered the California delegation:
After the speech, former New York governor Tom Dewey invited him to his hotel room for a drink. Eisenhower backers Lucius Clay and Herbert Brownell were there. When Dewey broached the subject of the vice presidential nomination, Nixon said he would be delighted to accept it. It wouldn’t hurt his chances, he was told, if he helped swing the California delegation to Eisenhower.
I wasn’t at that meeting, of course. It was before my time. And no one knows exactly what was said at the meeting, because no one was wearing a wire. But does the statute mean that Eisenhower or his supporters did something criminal at this meeting? If so, is that really what we had in mind?
We should be careful when we draft statutes. If we want them to be enforceable, surely we should make clear what is and is not intended to be criminal in American politics.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.