Threatening President – 18 U.S.C. § 871 Sentencing Guidelines

Thanks for visiting Federal Lawyers, a second-generation firm managed by our lead attorney with over 40 years of combined experience defending clients in politically sensitive prosecutions. When federal prosecutors charge threatening the President under 18 U.S.C. § 871, they’re alleging you knowingly and willfully made a threat to take the President’s life or inflict bodily harm. Maximum sentence: **5 years** imprisonment and $250,000 fine. The statute criminalizes threats regardless of whether defendants intended to actually carry them out, creating tensions with First Amendment protections for political speech. Secret Service investigates every credible § 871 threat, and prosecutions have surged with social media’s rise—statements that once would have been made privately to friends now broadcast publicly online, triggering federal attention.

What Constitutes a “True Threat”

Section 871 doesn’t criminalize all statements expressing ill will toward the President. Courts distinguish “true threats” (criminal) from protected political hyperbole or satire (constitutional):

• **True threats** – Statements where speakers mean to communicate serious expressions of intent to commit unlawful violence against particular individuals. The speaker must intend the statement as a threat, and recipients must reasonably perceive it as threatening imminent or future harm.
• **Protected speech** – Political rhetoric, satire, hyperbole, conditional statements, artistic expression. “I wish someone would…” statements typically aren’t threats. Historical or hypothetical discussions about presidential assassinations aren’t threats. Angry venting that doesn’t communicate intent to act isn’t criminal.

The Supreme Court in *Virginia v. Black* and *Counterman v. Colorado* clarified that true threats require subjective awareness on the defendant’s part that statements would be understood as threats. Merely making statements that objectively seem threatening isn’t enough if defendants didn’t know or consciously disregard the risk that recipients would take them as threats.

The “Knowingly and Willfully” Requirement

Section 871 requires defendants act “knowingly and willfully.” What does this mean?

**Knowingly**: Defendants must be aware they’re making statements about threatening the President. Accidental or unknowing statements—however objectively threatening—don’t violate § 871.

**Willfully**: Defendants must intend to make the threat, meaning they purposefully chose to communicate threatening statements. Spontaneous angry outbursts, jokes taken out of context, or statements misunderstood by listeners might lack the willful element if defendants didn’t intentionally communicate threats.

Defense challenges the government’s characterization of statements as willful threats. Present evidence that statements were jokes, artistic expression, political commentary, or venting frustrations without any intent to threaten. Context matters enormously—statements at comedy shows, in songs or poems, or during heated political debates receive more First Amendment protection than direct communications to Secret Service or White House stating intent to harm the President.

Federal Sentencing: Offense Level 12

Under §2A6.1 of the Federal Sentencing Guidelines, threatening the President receives base offense level 12. At Criminal History Category I, that yields 10-16 months. Enhancements include:

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• **+6 levels** if the offense involved any conduct evidencing an intent to carry out the threat (offense level 18: 27-33 months)
• **+2 levels** if the threat was made with intent to interfere with the administration of justice or the orderly administration of governmental functions
• **Cross-reference to assault or attempted murder** if defendants took substantial steps toward executing threats, potentially yielding offense levels 25-33

The “intent to carry out” enhancement applies when defendants took any steps beyond just making threats: acquiring weapons, traveling toward locations where the President would be, conducting surveillance, creating detailed plans. Evidence of intent dramatically increases sentences from roughly 1 year to 2-3 years or more.

Legal Scenario: What Would You Do?

Scenario

After a heated political argument on social media, you posted a hyperbolic comment about the President that you intended as rhetorical frustration. Two days later, Secret Service agents appeared at your door, informed you that you're under investigation for violating 18 U.S.C. § 871, and asked you to come in for questioning.

Can I really be charged with a federal crime for something I posted online that I never actually intended to carry out?

Attorney's Answer

Under 18 U.S.C. § 871, the government must prove you knowingly and willfully made a true threat against the President — but courts have held that the statute does not require proof you actually intended to carry out the threat. The key legal question, as established in cases like Watts v. United States, is whether a reasonable person would interpret your statement as a serious expression of intent to harm rather than political hyperbole. Sentencing guidelines for a conviction can include up to five years in federal prison, and judges weigh factors such as the specificity of the threat, your criminal history, and whether you took any preparatory steps. You need experienced federal defense counsel immediately — do not speak with Secret Service agents without an attorney present, as anything you say can and will be used to establish the willfulness element of the charge.

This is general information only. Contact us for advice specific to your situation.

Most § 871 prosecutions involve individuals who made intemperate online statements but took no action toward executing threats. These cases result in offense level 12 (10-16 months at Category I). With acceptance of responsibility (−3 to level 9), defendants often receive 4-10 months or probation if they have no criminal history and demonstrate the statements were aberrations rather than genuine threats.