Legal Analysis

Was Pat Robertson's Call for Assassination of a Foreign Leader a Crime?

By John W. Dean
August 26, 2005

[NOTE: The following legal analysis was prepared by Former Counsel to The President of the United States John W. Dean and Originally Published at Findlaw.com]

Page 2

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."



Continue to p.3 >>>

NOTE: The Venezuela Information Office is dedicated to informing the American public about contemporary Venezuela, and receives its funding from the government of Venezuela. More information is available from the FARA office of the Department of Justice in Washington DC.

Venezuela Information Office
733 15th Street NW, Suite 932 Washington, DC 20005  tel: (202) 347-8081  fax: (202) 347-8091