8.12 Threats Against the President (18 U.S.C. § 871)

Comment 

            The Committee has withdrawn the previously adopted and published jury instruction for violations of 18 U.S.C. § 871, (threats against the president).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, 575 U.S. 723, 740 (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  The withdrawn instruction incorporated an element that also used an objective standard when viewing whether the communication was a threat.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.

            See also United States v. Bagdasarian, 652 F.3d 1113, 1122-23 (9th Cir. 2011) (reversing conviction under 18 U.S.C. § 879(a)(3), criminalizing threats against major presidential candidates, when defendant’s statements were “predictive” and “exhortatory” but did not indicate speaker’s own intention to threaten then-candidate Obama).

Revised Sept. 2018