Threatening the President or Other Government Officials

 The U.S. Secret Service tracked the incendiary comments to Brian Dean Miller. Miller opposed the legislation overhauling health care. They arrested him for threatening the president.

As with most other guarantees under the U.S. Constitution, the First Amendment right to free speech has limits. Miller, whose speech crossed the line, pleaded guilty in a Dallas federal court. The judge sentenced him to 27 months in prison without parole.

In this article, we explore the federal law crime of threatening the president of the United States. Threats against government officials are serious and a crime against the government.

Presidential Threats: 18 U.S. Code Section 879

The statutes criminalizing threats against the president and other federal officials appear in Chapter 41 of the U.S. Code. This chapter covers several threat-related offenses involving federal officials and other protected people. It also details crimes against the government, such as blackmail, extortion, and taking kickbacks from public works employees.

This article will focus on threats against the president, vice president, and government officials. Federal laws at 18 U.S.C. Sections 871 and 879 prohibit threats to all the following:

• President and vice president
• President-elect and vice president-elect
• Any officer next in the order of succession to the president
• Member of the immediate family of the president and vice president
• Member of the immediate family of the president-elect and vice president-elect
• Any former president or their immediate family members
• A major candidate for the office of president or vice president or any of their immediate family
• Anyone protected by the Secret Service
• Any internationally protected person outside the United States who is a representative, officer, employee, or agent of the United States and a U.S. national

A threat must be knowing and willful for a violation of these sections to occur. It must also constitute a threat to either kill, kidnap, or inflict bodily harm upon the president or another protected person.

Federal law also contains a broader threat crime often used when a person threatens other public officials. In the offense of interstate communications (18 United States Code Section 875C), the law prohibits:

• Transmission in interstate or foreign commerce
• Any communication containing any threat
• To kidnap any person or to injure the person of another

Penalties for this crime can include up to five years in federal prison, a fine of up to $250,000, or both. Law enforcement often uses this section to threaten those in the judiciary, members of the House or Senate, and other elected officials.

What is a 'Credible' Threat?

According to the law, an offender must "knowingly and willfully" make the threat. As a result, investigating officers must consider the larger context of the statement. If such a threat is part of a political argument or made in jest, it often won't rise to a "credible threat." Case reviews must consider the First Amendment's protection of a person's free speech rights.

For example, if a comedian makes a joke about killing the president, it probably wouldn't violate the law, even if it lacks good taste. Legendary comedian Groucho Marx stated in 1971 that "the only hope this country has is Nixon's assassination." It may have been an irresponsible comment, but one protected as free speech. Of course, even a comedian can make a credible threat under different circumstances.

In Watts v. United States (1969), the U.S. Supreme Court held that courts reviewing conduct under the presidential threat crime needed to separate "political hyperbole" from genuine threats of harm. It reversed the conviction of a draft protester who stated at a rally, "If they even make me carry a rifle, the first man I want to get in my sights is L.B.J." In U.S. v. Elonis (2015), the court said the interstate communications crime must include a mental state element. It noted that jury instructions should show that the mental state for the crime is present if:

• The defendant transmits a communication to issue a threat or
• With knowledge that the communication will be viewed as a threat

Elonis involved a defendant who used social media to make threats against his estranged wife, law enforcement, and others. The Third Circuit Court of Appeals reviewed his conviction in light of the Supreme Court's directive. It found a harmless error in the instructions provided to the jury. It concluded no rational jury could see he didn't know the threatening nature of his communications.

Recently, in Counterman v. Colorado (2023), the Supreme Court reviewed threat evidence in a case that involved threats and stalking. It held that the state must show that an offender had some intent that their words would convey a threat. The Colorado statute at issue only required an objective test. It focused on whether a reasonable person would find the statement a true threat. The court held the objective standard standing alone violated the First Amendment. It concluded that the state must show that an offender acted recklessly in making the threat. People act recklessly when they consciously disregard a substantial risk that the conduct will cause harm.

Law enforcement and federal prosecutors use their discretion to assess the credibility of threats at issue in a federal case. The issue goes to the jury if the FBI or the Secret Service pursue criminal charges. It must determine whether a statement is a credible threat against the president, vice president, or government official. First Amendment protections make this determination nuanced and fact-based. They should consider:

• Did the defendant mean their words as a threat or know others would see it that way?
• Were they reckless in their communications?
• Would a reasonable person regard the statements as threats?
• What was the tone?
• What were the reactions of the listeners or audience?

Weighing the threat's credibility is also key because the crime is complete with the making of the threat. The state does not have to prove the offender had the means to carry out the threat.

The man who threatened President Obama in 2010 admitted that he wrote the threatening words. He then repeated his threat when confronted by federal agents. Since he pleaded guilty, the decision of whether his threat was credible never went to a jury.

Who Investigates Presidential Threats?

The United States Secret Service began in 1865. It had a directive from Congress to investigate and enforce laws against the counterfeiting of U.S. currency. In the 1890s, the Secret Service began providing part-time protection to President Grover Cleveland. After the assassination of President William McKinley in 1901, it took on its role of presidential security full-time. Throughout the 20th Century, Congress expanded its mission to protect officials and investigate crime.

Today, the Secret Service investigates threats against the president and others under its protection. It also provides security for the White House and other vital federal locations. The FBI and other law enforcement agencies may investigate such threats depending on the case and the circumstances. Federal prosecutors under the Department of Justice pursue these cases in court.

Penalties for Threatening the President

Anyone convicted of making a credible threat against the president, vice president, or others under these laws faces time. In most cases, federal law provides sentences of up to five years in prison, a fine of up to $250,000, or both. Courts can also add restrictions on release. This can include up to three years of supervised release. They can also limit internet access while on supervision.

Threats against foreign officials, official guests, or internationally protected people may carry the same penalties. Threats of assault (rather than murder or kidnapping) are punishable by up to three years in prison.

Do You Have More Questions About Threats Against Public Officials? Call an Attorney

The internet provides a forum at all hours of the day for people to share their views, no matter how extreme. The opportunity to threaten the president and other officials has increased exponentially. Even if you didn't mean it, a threat that seems credible could land you in federal prison. If someone accuses you of making threats to the president or any other government officials, consider talking to a lawyer right away. An experienced criminal law attorney can review your situation and explain the law and your rights.