Umpire Troubles: Rob Drake and Joe West land in legal limbo

Rob Drake Tweets Threat of Violence

Veteran MLB umpire Rob Drake added to the sport’s World Series public relations nightmare this week by tweeting a threat of violence in President Donald Trump were to be impeached.

Drake’s poor spelling aside, this could prove to be a significant legal problem for the umpire, later apology notwithstanding.

As you’re probably aware, the vast majority of speech in the United States is protected by the First Amendment to the Constitution.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There are, however, exceptions, everything from threats of violence to commercial misrepresentations. In those cases, Congress and the states can regulate speech (within limits). For example, 18 U.S.C. 2383 says this:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

As one court explained, “18 U.S.C. §§ 2383-85 prohibit rebellion or insurrection, seditious conspiracy, and advocating the overthrow of the government.” Even here, there are limits, in United States v. Silverman, the court concluded that a conviction rested on “whether or not the jury could infer from the conspirators’ revolutionary ardor that they were presently committed to advocating jointly the use of violence.” The problem for Drake is that his statement that he was purchasing a firearm in anticipation of a civil war does seem to imply that he would be advocating the use of violence.

Nor could Drake argue that he was defending the lawful government. Impeachment is in the Constitution and, as such, entirely lawful. Per Article I, Section 2:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

And later, in Section 3:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

* * *

Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

And finally, Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Constitution allows the Congress to set its own rules governing impeachment, and as such what constitutes “high crimes and misdemeanors” is up to Congress. So if President Trump were to be impeached and removed from office, and Vice President Pence to become president, Pence would be the leader of the lawful government of the United States. There’s also the point that impeachment, in and of itself, does not result in removal; as we saw with the Bill Clinton impeachment proceedings, the Senate would have to convict for removal to occur.

So what Drake was doing was threatening a rebellion if Trump were impeached against a government that Trump may well still be leading. In other words, it is absolutely unlawful to make a threat of violence against the government if President Trump is impeached. Impeachment is legal, and a government post-impeachment, whether led by Trump or someone else, would be the lawful government of the United States. Any rebellion against the government based on Trump’s impeachment, therefore, would be an unlawful insurrection.

Whether Drake will face charges is another matter. Prosecutions under Section 2383 were used during the Cold War to prosecute communists before tapering off after the fall of the Soviet Union. They made a brief comeback during the post-9/11 “War on Terror,” where the statute was used to prosecute so-called “enemy combatants.” Would the government care enough to prosecute Drake here? Probably not, unless they think he actually intends to act on his threat. Prosecutorial discretion means that not every illegal or criminal act is prosecuted. But that doesn’t mean Drake is legally in the clear; after all, there’s a reason you can expect a visit from the Secret Service for threatening the life of a sitting president: that’s a federal crime.

Joe West Sues Paul Lo Duca

Country Joe West has a way of finding himself in the theater of the absurd. Last year, he tossed Austin Davis from a game for looking at a scouting report card. And now, he’s suing former catcher Paul Lo Duca in what might be the stupidest lawsuit of the year.

Remember Paul Lo Duca? The former Dodgers and Mets catcher had a nice little career, finishing up with an almost exactly league average 97 wRC+ across eleven MLB seasons and notably spending a lot of time inexplicably batting second for a mid-aughts Mets team that also had Carlos Beltran, David Wright, Carlos Delgado, Cliff Floyd, and Jose Valentin all in their primes and all not batting second. (Seriously: in 2006, Lo Duca hit second in all but two games he started despite having the second lowest wRC+ on the team. In those other two games...he hit third.)

Anyway, Lo Duca was on the Favorites Podcast earlier this year when he said this about a game from “2006 or 2007”:

“We’re playing like a really tight game against the Phillies and Billy Wagner comes in from the bullpen,” Lo Duca said. “I used to go to the mound every time and like, ‘What’s going on?’ and he’s like, ‘Hey, Joe’s behind the plate. Set up a couple more inches inside. I was like, ‘Are you kidding me? Joe hates me.’ He’s like, ‘No, no, no, no, no, no. Joe loves me.’

“I go, ‘He hasn’t given us the corner all day.’ He’s like, ‘Don’t worry about it.’ He literally throws 10 pitches and strikes out three guys. Joe rings up all three guys. Eight out of the nine pitches were at least three to four inches inside, not even close. Guys were throwing bats and everything. Joe walks off the field.”

Lo Duca is absolutely stunned and, according to the rest of his story, he immediately confronts Wagner after the game to get some answers. Believe the rest at your own risk.

“I get back into the clubhouse and I’m like, ‘What the (expletive) just happened just right now?’ And Wagner just winks at me. I’m like, ‘What’s the secret?’ He’s like, ‘Eh, Joe loves antique cars so every time he comes into town I lend him my ’57 Chevy so he can drive it around so then he opens up the strike zone for me.’

Welp. So Paul Lo Duca is essentially accusing Joe West of taking bribes, which would obviously be both scandalous and a violation of the rules governing umpires. So Joe West sued Lo Duca for defamation.

The complaint, filed Tuesday in New York, denies that Wagner ever lent West a car and points out that no such game ever occurred.

”In reality, during 2006 and 2007, the two years that Lo Duca played for the New York Mets with Billy Wagner, Joe West was the home plate umpire for a game between the Philadelphia Phillies and the Mets only once, Billy Wagner did not pitch at all, and the game ended on a home run, not on called strikes.”

West is understandably concerned about his reputation. That said, this lawsuit is a very, very bad idea. First, West is a public figure, which means that West will have to show that Lo Duca either knew or should have known his account was false. And that leads to a separate problem: truth is a complete defense to defamation.

I looked at every game between 2006 and 2007 where Wagner entered the game with a save opportunity. West is right that he didn’t call a game between the Mets and Phillies during that period. However, he did call this game between the Mets and Cardinals on August 23, 2006. In that game, Billy Wagner picked up the save, facing four hitters. More interestingly, Joe West called Wagner’s 18 pitches against four batters, six were called strikes by West. West, by the way, had called just nine pitches strikes for the previous four pitchers combined. That was the most called strikes Wagner received in a game that year; he wouldn’t have more until this game more than a year later, where he faced TEN batters and blew a save. Those six called strikes were the most Wagner received in any one-inning save opportunity over the course of two years.

Now, this doesn’t prove anything. For all we know, Wagner could well have just been dealing that day. But it’s also possible that Lo Duca was at least partly right, and could’ve just gotten the opponent wrong. If that’s true, West could be playing a very dangerous game.