This week, in a desperate effort to get back “on message” after briefly pretending to be interested in economic policy, GOP presidential nominee and bottomless fecal lagoon Donald Trump asked his supporters at a Wilmington, North Carolina rally to imagine what actions they might have to take in the event that he loses the upcoming election to Democratic nominee Hillary Clinton.
One particularly innovative suggestion Trump offered: go out and assassinate some folks! “If she gets to pick her judges ― nothing you can do, folks,” Trump said, before adding, “Although, the Second Amendment people. Maybe there is. I don’t know.”
The statement, naturally, touched off yet another maelstrom in the media, which might never become totally inured to Trump’s constantly escalating perpetual disbelief machine. Trump’s campaign surrogates spent the latter part of Tuesday afternoon trotting out every near-plausible defense of the remark that they could pull from their thought-holes before Trump finally settled upon what’s been his default position since his campaign began ― all publicity is good publicity. “I have to say,” he said to Sean Hannity Tuesday night, “in terms of politics, there is few things, and I happen to think that if [the media] did even bring this up, I think it’s a good thing for me.” Hey, man, whatever it takes to “win” a “news cycle.”
But the instincts demonstrated by his campaign surrogates to walk back the statement may have been the correct ones, because as it turns out, there is actually a federal statute against publicly inducing these kinds of oblique threats called “18 U.S.C. § 879 : US Code - Section 879,” which you might know by its street name, “Threats against former Presidents and certain other persons.” Let’s go to the U.S. Code!
a) Whoever knowingly and willfully threatens to kill, kidnap, or inflict bodily harm upon -
(1) a former President or a member of the immediate family of a former President;
(2) a member of the immediate family of the President, the President-elect, the Vice President, or the Vice President-elect;
(3) a major candidate for the office of President or Vice President, or a member of the immediate family of such candidate; or
(4) a person protected by the Secret Service under section 3056(a)(6);
shall be fined under this title or imprisoned not more than 5 years, or both.
(b) As used in this section -
(1) the term “immediate family” means -
(A) with respect to subsection (a)(1) of this section, the wife of a former President during his lifetime, the widow of a former President until her death or remarriage, and minor children of a former President until they reach sixteen years of age; and
(B) with respect to subsection (a)(2) and (a)(3) of this section, a person to whom the President, President-elect, Vice President, Vice President-elect, or major candidate for the office of President or Vice President -
(i) is related by blood, marriage, or adoption; or
(ii) stands in loco parentis;
(2) the term “major candidate for the office of President or Vice President” means a candidate referred to in subsection (a)(7) of section 3056 of this title; and
(3) the terms “President-elect” and “Vice President-elect” have the meanings given those terms in section 871(b) of this title.
Assuming that Trump was referring to Hillary Clinton in these remarks and not merely future Supreme Court justices (it’s a pity that he can’t be more clear about who should be murdered ― this is not a mistake that Vladimir Putin makes), then he would seem to check three of this statute’s boxes right away: “person protected by the Secret Service,” “major candidate for the office of President,” and “member of the immediate family of a former president,” ― specifically, “the wife of a former president during his lifetime.” (Let’s pause to note the legally enshrined, bulletproof plexiglass ceiling!)
So, should Trump be fined or thrown in the hoosegow for no more than five years? Fortunately for Trump, some relevant legal decisions play in his favor, most notably 1969’s Brandenberg v. Ohio. In that case, an Ohio-based Ku Klux Klan leader named Clarence Brandenberg was charged and convicted under Ohio’s criminal syndicalism statute for making violent threats in a public speech. The Supreme Court, however, reversed the conviction on the grounds that abstractly made threats were protected under the First Amendment, and that inflammatory speech could only be punished if it could be reasonably considered a call to “imminent lawless action.”
So was Trump making an explicit call to imminent lawless action? It’s honestly hard to think of this as necessarily “imminent,” given that were are many weeks away from the 2016 election even being decided. Presumably, if this “you guys should go out and shoot Hillary Clinton” rhetoric ends up in Trump’s version of an election night concession speech, we might have to re-examine this.
Of course, constantly inciting political violence has long been a feature of Trump’s campaign rhetoric. Ironically, however, the near constancy of these incitements can make it difficult to view them as serious. As I’m sure anyone who has ever tried to protect themselves, or others, from the looming threat of domestic violence can tell you, the problem with determining whether or not a threat can be considered to be a precursor to “imminent lawless action” is that this determination tends to only get made after it’s too late.
Isn’t this a super-fun and entertaining election, though? Lots of twists and turns, man. Game changes galore! And it will probably all end very politely. You worry too much!
Editor’s note: Donald Trump regularly incites political violence and is a serial liar, rampant xenophobe, racist, misogynist and birther who has repeatedly pledged to ban all Muslims ― 1.6 billion members of an entire religion ― from entering the U.S.
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Jason Linkins edits “Eat The Press” for The Huffington Post and co-hosts the HuffPost Politics podcast “So, That Happened.” Subscribe here, and listen to the latest episode below.