http://writ.news.findlaw.com/dean/20050826.html

Was Pat Robertson's Call For Assassination Of A Foreign Leader A
Crime?

Had He Been a Democrat, He'd Probably Be Hiring A Criminal Attorney

By JOHN W. DEAN
----
Friday, Aug. 26, 2005

On Monday, August 22, the Chairman of the Christian Broadcast Network,
Marion "Pat" Robertson, proclaimed, on his 700 Club television show,
that Venezuelan President Hugo Chavez should be murdered.

More specifically, Robertson said, "You know, I don't know about this
doctrine of assassination," referring to the American policy since the
Presidency of Gerald Ford against assassination of foreign leaders,
"but if he [Chavez] thinks we're trying to assassinate him, I think
that we really ought to go ahead and do it. It's a whole lot cheaper
than starting a war, and I don't think any oil shipments will stop."

"We have the ability to take him out," Robertson continued, "and I
think the time has come that we exercise that ability. We don't need
another $200 billion war to get rid of one, you know, strong-arm
dictator. It's a whole lot easier to have some of the covert
operatives do the job and then get it over with."

Robertson found himself in the middle of a media firestorm.

He initially denied he'd called for Chavez to be killed, and claimed
he'd been misinterpreted, but in an age of digital recording,
Robertson could not flip-flop his way out of his own statement.

He said what he said.

By Wednesday, Robertson was backing down:

"I didn't say 'assassination.' I said our special forces should 'take
him out,'" Robertson claimed on his Wednesday show.

"'Take him out' could be a number of things including kidnapping."

No one bought that explanation, either.

So Robertson quietly posted a half apology on his website.

It is only a half apology because it is clear he really does not mean
to apologize, but rather, still seeks to rationalize and justify his
dastardly comment.

From the moment I heard Robertson's remark, on the radio, I thought of
the federal criminal statutes prohibiting such threats.

Do they apply?

For me, the answer is yes.

Indeed, had these comments been made by a Dan Rather, a Bill Moyers,
or Jesse Jackson, it is not difficult to imagine some conservative
prosecutor taking a passing look at these laws - as, say, Pat
Robertson might read them -- and saying, "Let's prosecute."


-----The Broad Federal "Threat Attempt" Prohibition Vis-à-vis Foreign
Leaders

Examine first, if you will, the broad prohibition against threatening
or intimidating foreign officials, which is a misdemeanor offense.

This is found in Title 18 of the United States Code, Section 112(b),
which states: "Whoever willfully -- (1) ... threatens ... a foreign
official ..., [or] (2) attempts to... threaten ... a foreign official
... shall be fined under this titled or imprisoned not more than six
months, or both."

The text of this misdemeanor statute plainly applies:

No one can doubt that Robertson "attempted" to threaten President
Chavez.

Yet the statute was written to protect foreign officials visiting the
United States - not those in their homelands.

Does that make a difference?

It would likely be the precedent of the U.S. Court of Appeals for the
Fourth Circuit that would answer that question; the Fourth Circuit
includes Virginia where Robertson made the statement.

And typically, the Fourth Circuit, in interpreting statutes does not
look to the intent of Congress; it focuses on statutory language
instead.

And in a case involving Robertson, to focus on language would only be
poetic justice:

Robertson, is the strictest of strict constructionists, a man who
believes judges (and prosecutors) should enforce the law exactly as
written.

He said as much in his 2004 book, Courting Disaster: How the Supreme
Court Is Usurping The Power of Congress and the People.

Still, since the applicability of this misdemeanor statute is
debatable, I will focus on the felony statute instead.


-----The Federal Threat Statute: Fines and Prison For Threats to
Kidnap or Injure

It is a federal felony to use instruments of interstate or foreign
commerce to threaten other people.

The statute is clear, and simple.

Title 18 of the United States Code, Section 875(c), states: "Whoever
transmits in interstate or foreign commerce any communication
containing any threat to kidnap any person or any threat to injure the
person of another, shall be fined under this title or imprisoned not
more than five years, or both."

The interstate or foreign commerce element is plainly satisfied by
Robertson's statements.

Robertson's 700 Club is listed as broadcasting in thirty-nine states
and the District of Columbia, not to mention ABC Family Channel
satellites which cover not only the United States but several foreign
countries as well.

In addition, the program was sent around the world via the Internet.

But did Robertson's communication "contain" a "threat" to "kidnap" or
"injure" Chavez?

First, Robertson said he wanted to assassinate President Chavez. His
threat to "take him out," especially when combined with the
explanation that this would be cheaper than war, was clearly a threat
to kill.

Then, Robertson said he was only talking about kidnapping Chavez.

Under the federal statute, a threat to "kidnap" is expressly covered.

As simple and clear as this statute may be, the federal circuit courts
have been divided when reading it.

But the conservative Fourth Circuit, where Robertson made his
statement, is rather clear on its reading of the law.


-----Does Robertson's Threat Count As A "True Threat"? The Applicable
Fourth Circuit Precedents Suggest It Does

If Robertson himself were a judge (or prosecutor) reading this statue
-- based on my reading of his book about how judges and justice should
interpret the law -- he would be in a heap of trouble.

But how would the statute likely be read in the Fourth Circuit, where
a prosecution of Robertson would occur?

Under that Circuit's precedent, the question would be whether
Robertson's threat was a "true threat."

Of course, on third reflection, Robertson said it was not.

But others have been prosecuted notwithstanding retractions, and later
reflections on intemperate threats.

Here is how the Fourth Circuit -- as it explained in the Draby case --
views threats under this statute:

"Whether a communication in fact contains a true threat is determined
by the interpretation of a reasonable recipient [meaning, the person
to whom the threat was directed] familiar with the context of the
communication."

This is an objective standard, under which the court looks at the
totality of the circumstances surrounding the communications, rather
than simply looking to the subjective intent of the speaker, or the
subjective feelings of the recipient.

So even if Robertson did not "mean" to make a threat, and even if
Chavez did not "feel threatened," that is not the end of the story.

In one Fourth Circuit case, the defendant "asked if [the person
threatened] knew who Jeffrey Dahlmer [sic] was."

Then the defendant added that, "he didn't eat his victims, like
Jeffrey Dahlmer; [sic] that he just killed them by blowing them up."

This defendant's conviction for this threat was upheld.

In another Fourth Circuit ruling, the defendant, an unhappy taxpayer,
was convicted for saying, to an IRS Agent, that "in all honesty, I can
smile at you and blow your brains out"; that "once I come through
there, anybody that tries to stop me, I'm going to treat them just
like they were a cockroach"; and, that "unless I can throw somebody
through a damn window, I'm just not going to feel good."

Viewed in the context, and taking into account the totality of the
circumstances, it was anything but clear that any of these threats
were anything more than angry tough talk.

The same could be said of Robertson's threats.

Yet in both these cases, the Fourth Circuit upheld the defendant's
conviction, deeming the "true threat" evidence sufficient to do so.

For me, this make Robertson's threats a very close question.

President Chavez publicly brushed Robertson's threats off, for obvious
diplomatic reasons, yet I suspect a little inquiry would uncover that
the Venezuelan President privately he has taken extra precautions, and
his security people have beefed up his protection.

Robertson has Christian soldiers everywhere.

Who knows what some misguided missionary might do?

If you have not seen the Robertson threat, view it yourself and
decide.

Robertson's manner, his choice to return to the subject repeatedly in
his discourse, and the seriousness with which he stated the threat,
all strike me as leading strongly to the conclusion that this was a
true threat.

Only media pressure partially backed him off.

And his "apology" is anything but a retraction.

Will Robertson be investigated or prosecuted by federal authorities?

Will he be called before Congress?

Will the President, or the Secretary of State, publicly chastise
Robertson?

Are those three silly questions about a man who controls millions of
Republican votes from Christian conservatives?

_________________________________________________________

The answer to that obviously rhetorical question is, of course.

Harry