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8.47 Threats Against the President

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The Committee has withdrawn the previously adopted and published jury instruction for violations of 18 U.S.C. § 871, (threats against the president). In reversing a defendant’s conviction for violating 18 U.S.C. § 875(c) (transmitting in interstate or foreign commerce any communication containing a threat to kidnap any person or injure any person), the Supreme Court has held that the mens rea of a crime involved in communicating a threat is established through proof that the defendant makes a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. Elonis v. United States, 135 S. Ct. 2001 (2015). Elonis rejected the rule applied in the Ninth Circuit that "[w]hether a particular statement may properly be considered to be a threat is governed by an objective standard—whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." United States v. Keyser, 704 F.3d 631, 638 (9th Cir.2012) (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990)). The withdrawn instruction incorporated an element that also used an objective standard when viewing whether the communication was a threat. While this crime is not identical in its elements to the more general crime under 18 U.S.C. § 875(c), a court may want to consider whether the legal analysis regarding the mens rea element in Elonis applies to the more specific crime of threats against the President. 


Approved 10/2015