Trump should face criminal charges for stoking threats against FBI agents

 

An FBI Secure Forensics Facility

     

    On August 12th of 2022 former President Donald Trump provided the right-wing propaganda outlet Breitbart News with an unredacted copy of the FBI warrant that was served prior to the search of his Mar-a-lago residence. Trump and his legal counsel failed to redact the names of the FBI agents who signed receipts for materials taken during the search. There was an immediate social media response to the inclusion of those names, and several articles have accused Trump and Breitbart of "doxxing" those FBI agents. The relevant statute for such a doxing is 18 U.S. Code § 372 - Conspiracy to impede or injure officer, which states: "If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both." In this case, this section clearly applies to Trump's actions as he appears to have released the names for the purpose trying to injure those agents who searched his Mar-a-lago estate. To clarify: Trump and his associates sought to threaten to injure FBI agents on account of the lawful discharge of duties of their office. Trump's apparent goal is that his followers should retaliate against the FBI, with the intention that Federal Law enforcement agencies would be afraid to pursue any additional legal action against him. Trump may also be charged under 18 U.S. Code § 373 - Solicitation to commit a crime of violence, which states it is a crime for: "(a)Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States..." In this case, you would modify the argument slightly to say that Trump was using the "bully pulpit" of his social media  platform in an attempt to induce his followers to attack FBI agents in retaliation for the search conducted at the Mar-a-lago estate. 

    In this case, Trump's legal counsel and staff at Mar-a-lago should have advised him to redact the names of the FBI Agents before releasing the documents on the internet. Failure to do so was an example of gross legal negligence, in fact, those lawyers should also be charged for violating 18 U.S. Code § 372 on the grounds that their negligence constituted a gross failure to perform a duty of care to their client, and to prevent said client from committing a crime. Such a gross example of legal malpractice should be regarded as either gross incompetence, or criminal negligence. 

    A prosecuting attorney would argue that Trump and his staff sought to retaliate against those agents for conducting the search at Mar-a-lago. The key factor in winning a conviction on the charge would be showing evidence of criminal intent. In order to successfully convict, there would need to be evidence that Trump regarded his decision to release the names of the agents as "punching back" against the government. Trump's typical claims that he's a "fighter" and is just "pushing back" against the government would be sufficient grounds for conviction. The standard for when violent threats are no longer considered protected speech comes from the case Brandenburg v. Ohio, and refers to any speech that induces "imminent lawless action". The only question for the court is "what qualifies as 'imminent' when you're dealing with speech that is distributed via social media channels?" This is a matter that has not yet been effectively addressed by the courts, and the Department of Justice should also use charges against Trump as an opportunity to force the Supreme Court to update the Brandenburg precedent. A ruling that "imminent" means within a short time after words are originally spoken, without regard to how those words are disseminated or repeated over the internet would not be sustainable. Such a ruling would basically amount to free license to advertise calls for violence via the internet without consequence, so long as the original statement was made offline and the transition to the internet didn't occur until several hours later.  An updated ruling must address the issue of statements being repeated ad nauseum via the internet, as part of a process of driving political radicalization. 

    An ideal situation for the prosecution would be if someone who was at Mar-a-lago overheard Trump making comments to the effect of "My people are going to take care of these agents and their families," and they were willing to testify in court. Such a comment would indicate that Trump clearly intended for the release of the agents personal information to lead to violent acts against them. 

    Prosecutors may also follow the model of the January 6th committee, and compare Trump's behavior in the days following the release of the warrant to his behavior during the January 6th raid on the US Capitol building. In spite of news of a Trump supporter attacking an FBI office in Cincinnati, and news of armed Trump supporters menacing an FBI field office in Arizona, Trump has not made any public call to ask his supporters to stand down and avoid threatening FBI agents. In fact, Trump has pushed radicalizing propaganda via his Truth Social media platform, as demonstrated below: 

Trump's behavior is comparable to during the January 6th riot when, in spite of numerous staff members begging him to call off his supporters and ask them to go home, he refused to make any public statement calling for peace until after National Guard units had regained control of the Capitol Building and it was clear that Trump would not be able to successfully delay the counting of Electoral College votes. Prosecutors should model their prosecution of Trump on this point on the Thursday, July 21st hearing January 6th Committee hearing, and highlight the similarity in behavior between Trump's behavior that day, and his behavior during a period when  his supporters are harassing and threatening FBI agents. 

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