Yesterday, Arizona Attorney General Kris Mayes became the latest Democratic prosecutor to suggest a possible criminal charge against former President Donald Trump. Mayes suggested that Trump’s controversial statement on Liz Cheney going to war could constitute a criminal threat. It is absurd and Mayes knows that any such charge would collapse before any remotely objective trial judge.
The promise of a criminal investigation by Mayes may hold a type of thrill-kill enticement for voters, but it would constitute a major assault on free speech in criminalizing political rhetoric.
I have often criticized Trump for his rhetoric and particularly his personal attacks on opponents and critics. However, the question is not whether you like the Cheney comment but whether there would be any meaningful limits on criminalizing political speech.
Critics charged that some media outlets were accused of misrepresenting the comments by cutting off part of what Trump said.
Drudge Report’s ran a banner reading “TRUMP CALLS FOR CHENEY’S EXECUTION.” It then linked to the partial quotation on MSNBC and CNN:
“I don’t blame him for sticking with his daughter, but his daughter is a very dumb individual. Very dumb, she’s a radical war hawk. Let’s put her with a rifle standing there with nine barrels shooting at her, OK? Let’s see how she feels about it. You know, when the guns are trained on her face.”
However, they cut off the lines that followed. Here is the whole quote with the removed lines in bold:
“I don’t blame him for sticking with his daughter, but his daughter is a very dumb individual. Very dumb, she’s a radical war hawk. Let’s put her with a rifle standing there with nine barrels shooting at her, OK. Let’s see how she feels about it, you know, when the guns are trained on her face. You know, they’re all war hawks when they’re sitting in Washington in a nice building saying, oh, gee, we’ll, let’s send — let’s send 10,000 troops right into the mouth of the enemy.”
The quote is clearly a reference to Cheney going to war and how she would feel about it.
The usual suspects ran to X to decry a threat of violence, including Harvard Professor Laurence Tribe. Tribe previously called for Trump to be charged with the attempted murder of former Vice President Mike Pence. Even though no prosecutor has ever suggested such a charge, Tribe assured CNN that the crime was already established “without any doubt, beyond a reasonable doubt, beyond any doubt.” Tribe also previously declared that there was evidence supporting criminal charges of witness tampering, criminal election violations, Logan Act violations, extortion, espionage, attempted murder, and treason by Trump or his family.
Once again, I do not like the tenor or the name-calling. However, it is most clearly not a criminal threat.
What is most striking about Mayes’s promise is that no competent prosecutor would believe that such a political statement could constitute a crime.
We have been here before with Trump. After the January 6th riot, there was an overwhelming consensus that Tribe could be charged with incitement. After the riot, District of Columbia Attorney General Karl Racine was widely praised when he announced that he was considering arresting Trump, Donald Trump Jr., Rudy Giuliani, and U.S. Rep. Mo Brooks and charging them with incitement. So what happened to that prosecution? The failure of Racine to charge Trump was not due to any affection or loyalty to the former president. It was due to the paucity of direct evidence of a crime that would hold up in court. Supporters of this theory also often cut off the quote before Trump told his followers to protect “peacefully.”
Mayes will also likely drop the matter in time with no action. The important thing was to convey to Democratic voters a desire to prosecute Trump. It is now the bona fides of every Democratic prosecutor.
Even under Counterman v. Colorado, the Supreme Court ruled that criminal threats must be based on a showing of a culpable mental state. It cannot be based merely on a claim that words are objectively threatening. At a minimum, it requires the person to recklessly disregard a substantial risk that his words could be perceived as threatening. In so holding, the Court sought to offer “‘breathing space’ for protected speech.”
The need for such breathing space is even more significant in the context of a presidential campaign. For example, after his controversial garbage comment, Biden was accused of wanting to drown Trump. He has previously spoken about beating up Trump. None of that could be reasonably viewed as actual threats.
Even some figures on the left called out the media for misrepresenting the statement. The Young Turks’ Cenk Uygur wrote “Donald Trump did not call for the execution of Liz Cheney. That is a bald-faced lie.He was making a point about how she is a chickenhawk. But also, Trump shouldn’t talk about guns being ‘trained on her face,’ especially in a time where we’re worried about political violence.”
Vox correspondent Zack Beauchamp added his objections: “Folks, Trump didn’t threaten to execute Liz Cheney. He actually was calling her a chickenhawk, something liberals said about her for ages. Look at the context — Trump is talking about giving her a weapon. Typically, people put in front of firing squads aren’t armed.”
Political analyst Jonah Goldberg retracted his comments on CNN and now admits that there was no threat by Trump.
The threat from Mayes constitutes political pandering of the worst kind. Suggesting another round of lawfare just days before the election is a disservice to her office and the citizens of Arizona.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
N.B.: Here is the statute:
13-1202. Threatening or intimidating; classification
A. A person commits threatening or intimidating if the person threatens or intimidates by word or conduct:
1. To cause physical injury to another person or serious damage to the property of another; or
2. To cause, or in reckless disregard to causing, serious public inconvenience including, but not limited to, evacuation of a building, place of assembly or transportation facility; or
3. To cause physical injury to another person or damage to the property of another in order to promote, further or assist in the interests of or to cause, induce or solicit another person to participate in a criminal street gang, a criminal syndicate or a racketeering enterprise.
B. Threatening or intimidating pursuant to subsection A, paragraph 1 or 2 is a class 1 misdemeanor, except that it is a class 6 felony if:
1. The offense is committed in retaliation for a victim’s either reporting criminal activity or being involved in an organization, other than a law enforcement agency, that is established for the purpose of reporting or preventing criminal activity.
2. The person is a criminal street gang member.
C. Threatening or intimidating pursuant to subsection A, paragraph 3 is a class 3 felony.