At a Kentucky campaign rally on Monday, President Donald Trump appeared to take credit for “keeping former San Francisco 49ers quarterback Colin Kaepernick out of a job,” as CNN put it.
That could spell trouble for President Trump. Although the president is exempt from many ethics laws and regulations, he is subject to 18 U.S.C. 227, which prohibits any official “from influencing the employment decision of a private entity on the basis of partisan political affiliation.”
The politically-active Kaepernick became a free agent this month but has not yet been hired by another team. During the 2016 campaign, Kaepernick called Trump “openly racist,” and Trump hit back by criticizing Kaepernick’s protest of the national anthem.
On Monday, the president told the crowd that "it was reported that NFL owners don't want to pick him up because they don't want to get a nasty tweet from Donald Trump," eliciting raucous applause. Trump added he wanted to share the news of Kaepernick’s joblessness with “the people of Kentucky because they like it when people actually stand for the American flag."
Forbes noted that “shortly before Trump made his comments in Louisville, reports surfaced that the New York Jets” – a team owned by Woody Johnson, a top Trump fundraiser and Trump’s U.K. ambassador—would sign 37-year-old Josh McCown as starting quarterback, despite McKown being eight years older than Kaepernick and having won ten fewer games as starter.
Trump’s rally elicited headlines like “Trump brags he’s the reason Colin Kaepernick is unemployed” and “Trump credits his Twitter wrath for Kaepernick’s unemployment.”
So has President Trump violated the law?
18 U.S.C. 227 states:
“(a)Whoever, being a covered government person, with the intent to influence, solely on the basis of partisan political affiliation, an employment decision or employment practice of any private entity—
(1)
takes or withholds, or offers or threatens to take or withhold, an official act, or
(2)
influences, or offers or threatens to influence, the official act of another,” shall be fined under this title or imprisoned for not more than 15 years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.”
Section (b)(3) makes explicit that “a covered government person” includes the president, a provision that was extended to the White House in the 2012 STOCK Act.
At Monday’s rally, President Trump certainly appears to have celebrated his influence over the employment decisions of private entities. And given Kaepernick's campaign season critiques of then-candidate Trump, there is an argument that the president is exerting this influence on the basis of Kaepernick’s political affiliation.
Even if before the rally the president hadn’t actively sought to deter any teams from hiring Kaepernick, his statements at the event made clear that he embraced that perception and that he intended to encourage Kaepernick’s continued joblessness.
But, establishing a violation of 18 USC 227 requires not only that an official intentionally seeks to influence a private employment decision, but does so by threatening to take or withhold an “official act.”
Is a tweet an “official act?” That might be a tough argument to make, particularly after the Supreme Court last year in U.S. v. McDonnell narrowed the definition.
But, President Trump’s freewheeling use of his Twitter account for what appears to be official business has been unprecedented, and he has used tweets to make major policy pronouncements, lodge accusations, and single-out specific companies (which in turn can affect their stock prices). And the president apparently believes his tweets are powerful enough that the mere threat of a Trump tweet is enough to influence the employment decisions of NFL owners.
In any case, even if this latest ethical flap doesn’t rise to the level of a criminal violation, it fits an extraordinary pattern of this White House flaunting the norms, rules, and laws designed to keep government honest.