The Volokh Conspiracy
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D.C. U.S. Attorney Drops Probe Over Sen. Schumer's 2020 Statements About Gorsuch and Kavanaugh
That's the correct decision, though I don't think there should even have been a question about it.
The Washington Post (Spencer Hsu) reports:
Interim D.C. U.S. Attorney Ed Martin has dropped plans to investigate the country's most powerful elected Democrat over a statement he made about two conservative Supreme Court justices five years ago, concluding that a probe is unfounded, two people familiar with the matter said Tuesday.
The possibility had been aired by Mr. Martin in a Jan. 21 letter (and again in follow-up letters):
As United States Attorney for the District of Columbia, I receive requests for information and clarification. I take these requests seriously and act on them with letters like this one you are receiving.
At this time, I respectfully request that you clarify your comments from March 4, 2020. Your comments were at a private rally off the campus of the U.S. Capitol. You made them clearly and in a way that many found threatening. Your exact words were:
"I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions." Link here: https://www.cnn.com/videos/politics/2020/03/04/schumer-gorsuch-kavanaugh-supreme-court-abortion-lead-vpx.cnn
We take threats against public officials very seriously. I look forward to your cooperation with my letter of inquiry after request. Should you have further questions regarding this matter, please do not hesitate to call my office or schedule a time to meet in person.
It seems to me clear that Schumer's statement wasn't a punishable true threat of criminal attack; rather, it was a constitutionally protected threat of political retaliation:
Inside the walls of this court, the Supreme Court is hearing arguments, as you know, for the first major abortion right cases since Justice Kavanaugh and Justice Gorsuch came to the bench.
We know what's at stake. Over the last three years, women's reproductive rights have come under attack in a way we haven't seen in modern history. From Louisiana to Missouri to Texas, Republican legislatures are waging a war on women, all women, and they're taking away fundamental rights.
I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions.
The bottom line is very simple. We will stand with the American people. We will stand with American women. We will tell President Trump and Senate Republicans, who have stacked the court with right-wing ideologues, that you're going to be gone in November, and you will never be able to do what you're trying to do now ever, ever again. You hear that over there on the far right? You're gone in November.
We are here to send these folks a message, "Not on our watch." Let me ask you, my friends, are we going to let Republicans undo a woman's right to choose? No! Are we going to stay quiet as they try to turn back the clock? Are we going to give up or waver when things get tough? No. We're going to stand together in one voice and take a stand on behalf of women and families throughout the country. We're going to stand against all these attempts to restrict a woman's right to choose, and we will win.
As Vox (Ian Millhiser) noted at the time, Schumer is talking about the actions of a conservative movement: Republican legislatures are restricting abortion. Justices Gorsuch and Kavanaugh are likely to go along with that. The Democrats will kick the Republicans out in November. In context, "pay the price" means a political price: If Gorsuch and Kavanaugh uphold the abortion restrictions, their political side will lose the election, and will keep losing.
This is pretty standard political rhetoric, on both sides of the political aisle. To be sure, it is indeed possible to interpret it as a threat of violence; it's possible to interpret pretty much anything as a threat of violence. For instance, distributing a map with cross-hairs over Congressional districts could conceivably be interpreted as a threat that Sarah Palin or her PAC (the distributors of the map) would actually kill people. It just couldn't be reasonably interpreted the same way; likewise as to Schumer's speech.
Nor does it matter, I think, that some people on that side appeared willing to criminally attack the Justices (consider the planned Kavanaugh assassination). But in a nation of 330 million people, there will always be some people who are willing to act violently on a wide range of political issues, whether against government officials on the Left or on the Right. Political rhetoric that in context discusses political retaliation can't be stripped of its First Amendment protection simply because of the possibility that someone would perceive the rhetoric as threatening criminal action (or that someone else would be inspired to criminal action by the rhetoric).
Now none of this tells us what politicians and others should say or not say. I don't think Chief Justice Roberts was quite correct to say that Schumer's statement was "threatening." But at the same time, one can certainly argue that government officials, especially at "the highest levels of government," should try to diminish the temperature rather than increase it, especially when naming particular names. Schumer himself expressed regret about his choice of words.
But that should be a matter of political and ethical judgment—not of threatened criminal punishment. I'm glad that talk of trying to prosecute Schumer for this seems to have been rejected; I think federal prosecutors shouldn't even have floated the possibility.
