At a time when major news stories sometimes disappear in a day or two, the NFL protests against racial inequality have captivated the nation for nearly two years. The demonstrations have held our attention because they concern issues that Americans find important, including racism’s eradication, dissent’s boundaries, and patriotism’s meaning. As a case in point, consider the role played by Vice President Mike Pence, who on Wednesday will visit Grand Forks, the home of the Digital Press at the University of North Dakota, which will publish the forthcoming anthology, Protesting on Bended Knee: Race, Dissent, and Patriotism in 21st Century America.
Much had happened by the time Pence entered the story in October 2017. San Francisco 49ers quarterback Colin Kaepernick started demonstrating against racial inequality generally and the criminal justice system’s inequities particularly in August 2016, when the NFL was kicking off a new season. As the weeks and months passed, other players followed Kaepernick’s lead. But soon after the season ended, Kaepernick was unemployed, an unprecedented situation for a quarterback of his caliber. Moreover, as a new season started in fall 2017, the crusade that Kaepernick had initiated was losing steam, for only about a dozen NFL players were demonstrating at the time. Then, in a September 22 speech in Alabama, President Donald Trump, whose administration had rolled back many of the criminal justice reforms that had been enacted in the recent years, exclaimed, “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out. He’s fired! He’s fired!’” Trump also urged fans to leave the stadium or turn off their televisions if they saw kneeling during the anthem, “even if it’s one player.” The president’s comments set the stage for a weekend like no other in the history of American sports. Every franchise in the league witnessed demonstrations of some sort, with team owners, coaches, and players engaging in a potpourri of protest. Meanwhile, behind the scenes, many of those same individuals were laboring to find common ground. It was within this context that Pence appeared in the tale.
On October 8, 2017, Pence flew from Las Vegas to Indianapolis to attend a Colts-49ers game, only to dramatically walk out when members of the latter team, including protest stalwart Eric Reid (who had been the first player to kneel with Kaepernick), took a knee during the anthem. Pence explained via Twitter that he “would not dignify any event that disrespects our soldiers, our Flag, or our National Anthem.” Critics decried the move. Some claimed it was a taxpayer-funded political stunt (it was even noted that Pence used a two-year old picture in his post); others, with a heavy dose of irony, told Pence that they respected his right to protest but insisted that “a football game is an inappropriate place to flaunt your politics.” Trump himself seemed to undercut Pence’s earnestness by declaring that he had asked the vice president to leave the stadium. Despite the criticism, the Pence episode signaled to everyone that the administration would continue to use its sizable influence against the player-protesters.
The Pence affair also led to a watershed moment for the team owners. When Dallas Cowboys owner Jerry Jones, a Trump supporter who had long resented the demonstrations, was asked about Pence’s actions, he offered a dramatic answer, announcing that any player on his team who demonstrated during the anthem would be benched. This was the first time an owner openly declared that protesting players would be punished. Once again, observers were quick to point out the irony of the situation. One, noting that Jones had repeatedly signed players accused of domestic abuse, wrote, “imagine Jerry Jones demanding the Cowboys respect women as strongly as he demands respect for [the] flag.” Even so, it was Jones’ team; he could discipline players—probably even fire them—if he wished, for the law was likely on his side.
The NFL muddled its way through the rest of the season, which concluded in February 2018, and a few months later, when it unveiled what it deemed to be a solution to the demonstrations, Pence was once again in the middle of the action. In May, the NFL announced a new policy, one that would allow players to remain in the locker room during the national anthem, but required those on the field to stand respectfully during the song. When Pence learned about the NFL’s decision, he tweeted, “#winning.” Pence’s response is characteristic of the Trump administration’s worldview, where success and failure are binary concepts, where political battles are zero-sum games. It didn’t really matter what exactly had been won (in this case, apparently, the power of employers to punish employees who participate in voluntary exercises involving the anthem for actions that the employer regards as detrimental to the company). Instead, what mattered was that the NFL’s new policy was depicted as a clear-cut victory for the administration. While that portrayal fit the Trump “brand,” it also had problematic legal ramifications. As Kaepenrick’s lawyer tweeted in reply, it is illegal for federal elected officials to influence the employment practices of private entities on partisan grounds. That charge never amounted to much, but a few weeks later, another legal storm approached Pence, this one carrying profound constitutional implications.
Back in October 2017, Kaepernick filed a collusion grievance against the NFL. To prove collusion, Kaepernick must demonstrate that either multiple teams, or a single team and the NFL, conspired to keep him out of the league. By definition, Trump and his administration cannot be a party to the suit. But they can illuminate the thoughts and decisions of NFL executives and team owners, some of whom dialogued with the president and admitted that they feared criticism from him. That’s why in June, 2018 Kaepernick’s legal team revealed that it plans to ask a U.S. District Court judge to subpoena Trump, Pence, and other officials. If a subpoena is issued, will the president, vice president, and others comply? A refusal on their part could spark a constitutional crisis. Were administration officials to refuse to testify in the Kaepenrick case, despite a court-ordered subpoena requiring them to do so (much as they might refuse a subpoena stemming from special counsel Robert Mueller’s Russia investigation), the result would be a historic, high-stakes showdown over the respective powers of the judicial and executive branches of government.
That part of the story has yet to be written. But Pence’s role in the affair thus far illustrates why this saga is, as Kaepernick said after his initial protest, “bigger than football.”