Could Ohio charge Roger Stone with "menacing" for telling Trump fans to visit anti-Trump delegates' hotel rooms?

Seems dubious to me, but WaPo’s interested and they’ve found one expert willing to say that it’s “plausible” that Stone’s threat constitutes “menacing” for purposes of Ohio law. (The statute says “No person shall knowingly cause another to believe that the offender will cause physical harm to the person or property of the other person…”) Many delegates haven’t been chosen yet; none of those who have will even have a chance to cast a ballot against Trump for three more months; and Stone made a point of framing his threat, however disingenuously, as merely a demand for a “discussion.” Violence was implied by the prospect of an angry mob of voters descending on a delegate’s room but he was careful not to make it overt. Encouraging “days of rage” — protests, not riots, of course — is as close as he’ll get publicly to urging people to get physical.

How likely is it that you’ll get a conviction for menacing in light of all of the above for a threat made out of state, in a hypothetical scenario that hasn’t and might not come to pass, without it being specified who it is, exactly, that’ll be menaced? (Imagine if Stone is charged and then Trump clinches 1,237 delegates before the convention, with Trumpers doing nothing more in Cleveland than congratulating the delegates. Would the case proceed?) Also, a question for legal eagles: If I’m right that conviction is unlikely, wouldn’t it be ethically dubious for a prosecutor to charge Stone purely in order to “send a message” before the convention?

Joshua Dressler, faculty managing editor of the Ohio State Journal of Criminal Law, said “a plausible case can be made that this would constitute menacing.”

“To be guilty, however, the prosecutor would need to prove beyond a reasonable doubt that the words were expressed with the intention of causing apprehension of harm,” Dressler added. “So, what I am saying is that there might be sufficient evidence to obtain an indictment for this or a related offense, but whether you could prove the case at trial is a much greater hurdle.”

Nevertheless, Dressler said [prosecutor Timothy] McGinty, a Democrat, could decide to charge Stone to make a point.

“When dealing with political issues like this, one can imagine this can cloud the analysis,” Dressler said. “If the prosecutor would like to deter future risk of rioting, a prosecution might make good sense, to send a message. So, ultimately, a prosecution here, whether it would be successful or not, makes some sense. There is real recklessness in the words he expressed.”

Seems like a call from an ADA to Stone to try to discern his intent — it was just “dialog,” I swear! — and to warn him that he will be charged with menacing if he sends any mobs to delegates’ doors is a better way to handle it. The RNC could always wrist-slap him by barring him from the convention floor too, I assume, although no one’s at risk of getting beaten up there. I think?

Having sort of grudgingly defended Stone, though, let me quote this stellar bit from Robert Tracinski’s new post. This goes a long way towards explaining, I think, why so many #NeverTrumpers take moral exception to Trump and Trumpism. It’s not just that he surrounds himself with people like Stone, it’s that he encourages the mobbier impulses of populism, sometimes overtly and sometimes less so. They’re not a bug, they’re a feature:

Traditional conservative populism is: the elites think you’re rotten, but the joke’s on them because you’re actually better than them. You’re honest, hard-working, salt-of-earth people with heartland values, unlike those corrupt, effete, cynical jerks. This was often exaggerated and could amount to reverse snobbery, but there sure was something to it.

Trump’s version of populism is different. His message is: the elites think you’re rotten, so you might as well give up trying to be good. You’re never going to be politically correct enough, so throw out all standards of decency. They’re going to hate you anyway, so you might as well be what they hate you for. It’s an appeal to popular vice instead of popular virtue.

You simply can’t be too boorish in the name of Trumpian populism, as boorishness just proves how little you care what the elites think. That’s how you end up with Corey Lewandowski as your right-hand man. Frankly, if not for the fact that there’s potential legal jeopardy lurking via the “menacing” statute, I wonder if Stone wouldn’t be more upfront about what he really has in mind when he fantasizes about angry Trump fans banging on a delegate’s door to “talk.” Busting heads only proves the depth of your commitment to making America great again, no?

Speaking of dubious prosecutions of Trump supporters, this has got to be unconstitutional, no? Unconstitutional-ish, maybe? It’s definitely unconstitutional-ish.

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