Politics has a history of being ugly. In the election of 1828 John Quincy Adam’s campaign published the “Coffin Hand Bill,” which outlined people that candidate Andrew Jackson had killed in dueling; President Lyndon Johnson’s “Daisy Ad” nuked Senator Barry Goldwater in 1964; and the election of 1860 outright had threats against Abraham Lincoln.

While giving out the personal cell phone number of an opponent is nothing like dueling, it is a brutal way to reach out and touch someone. Just how many calls did Senator Graham have after Donald Trump’s sideshow antics? Moreover, what are the Senator’s possible legal actions (besides having a sense of humor and destroying his flip phone in a YouTube video)?

A creative Federal Prosecutor would analyze whether or not Donald Trump could be charged with violating 18 USCS § 351(e), which states “Whoever assaults any person designated in subsection (a) of this section [a Member of Congress, President, or member of the Executive Branch] shall be fined under this title, or imprisoned not more than one year, or both; and if the assault involved the use of a dangerous weapon, or personal injury results, shall be fined under this title, or imprisoned not more than ten years, or both.” 18 USCS § 351(e).

Case law has held that intentionally spitting on or throwing eggs at individuals covered by the law is sufficient to sustain a conviction. See, United States v Masel (1977, CA7 Wis) 563 F2d 322, cert den (1978) 435 US 927, 55 L Ed 2d 523, 98 S Ct 1496 and United States v Calderon (1981, CA10 Colo) 655 F2d 1037.

Giving out someone’s personal cell phone would not be assault under the plain text of current law, but it arguably is harassment. In South Carolina, harassment in the second degree is defined as “a pattern of intentional, substantial, and unreasonable intrusion into the private life of a targeted person that serves no legitimate purpose and causes the person and would cause a reasonable person in his position to suffer mental or emotional distress. Harassment in the second degree may include, but is not limited to, verbal, written, or electronic contact that is initiated, maintained, or repeated.” S.C. Code Ann. § 16-3-1700(B).

A lawyer could argue that intentionally giving out a United States Senator’s personal cell phone number is harassment, because it encouraged others to be the agent of a political candidate in making unwanted phone calls to a political opponent. While the political candidate himself is not making any phone calls, his actions arguably encouraged others to do so on his behalf.

South Carolina also prohibits assaulting or intimidating citizens based on their political beliefs. S.C. Code Ann. § 16-17-560. One can argue that giving out a cell phone number is a form of intimidation, depending on the nature and number of phone calls Senator Graham received based on his political opinions.

Could a Federal Prosecutor or District Attorney charge Donald Trump for harassing Senator Graham in either Federal Court or South Carolina? Unknown, but is something the FBI would be investigating if the Senator got any threatening phone calls.

Senator Graham potentially has a very strong invasion of privacy case by Trump giving out the Senator’s phone number. To prevail on such a theory, Senator Graham would have to prove:

  1. An Intrusion, which can include watching, spying, prying, besetting, overhearing, or other similar conduct;
  1. Into that which is private. The intrusion on the plaintiff must concern those aspects of himself, his home, his family, his personal relationships, and his communications which one normally expects will be free from exposure to the defendant; and
  1. Substantial and unreasonable enough to be legally cognizable.
  1. Intentional. The defendant’s act or course of conduct must be intentional. 

Snakenberg v. Hartford Casualty Ins. Co. (Ct.App. 1989) 299 S.C. 164, 166 [383 S.E.2d 2, 3].

Invasion of privacy requires that the defendant’s conduct would cause mental injury to a “person of ordinary feelings and intelligence in the same circumstance.” Id.

Most people would suffer mental injury if their cell phone exploded with adversarial calls and text messages. We do not know how many calls Senator Graham received because of Donald Trump’s disclosure of Senator Graham’s private phone number. Could the Senator have a civil case? Maybe, but there would have to be far more legal research and analysis of the number of calls the Senator received to determine if a lawsuit could be filed in South Carolina.

It is a good bet that there will be no legal action over this “political question.” Instead, the court of opinion that decides this case will be by the good people of Iowa, New Hampshire, and South Carolina.

I can safely say who I am not voting for in the primary.

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