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

Thanks for visiting Spodek Law Group, a second-generation firm managed by Todd Spodek 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:

• **+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.

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.

Mental Health Mitigation

Many § 871 defendants suffer from mental illness. Individuals experiencing psychiatric crises make threats they wouldn’t make when healthy. Defendants with paranoid delusions believe the President is persecuting them and make threats as defensive responses to perceived attacks.

Mental illness doesn’t negate liability—§ 871 doesn’t require defendants be mentally healthy, just that they knowingly and willfully made threats. But mental health profoundly affects sentencing. Courts impose lower sentences with supervised release conditions requiring psychiatric treatment when defendants demonstrate threats resulted from untreated illness rather than genuine dangerousness.

Defense presents psychiatric evaluations, medical records documenting mental health diagnoses, testimony from treating providers, and evidence that defendants sought help before making threats. When courts understand threats arose from illness, sentences focus on treatment rather than punishment.

First Amendment Defenses

The Constitution protects political speech, even speech harshly critical of presidents. Courts balance government’s interest in protecting the President against First Amendment rights:

• **Political satire and hyperbole** – Exaggerated statements in political context that reasonable listeners wouldn’t interpret as actual threats receive protection. “Someone should shoot the President for this policy” in a heated political debate is hyperbole, not a threat.
• **Conditional threats** – “If the President does X, someone might Y” statements discussing potential consequences of policies aren’t direct threats to personally harm the President.
• **Artistic expression** – Songs, poems, plays, or visual art depicting presidential harm may receive protection as artistic commentary rather than true threats, depending on context and audience.
• **Historical or academic discussion** – Discussing past presidential assassinations or analyzing hypothetical scenarios for educational purposes isn’t threatening.

Defense argues that statements fall within protected categories rather than constituting true threats. Present evidence of context—where statements were made, to what audience, in what medium, with what apparent purpose. A rapper’s song lyric receives different constitutional analysis than a direct message to Secret Service.

The Social Media Problem

Social media transformed § 871 prosecutions. Statements made in anger, as jokes among friends, or as hyperbolic political commentary reach massive audiences when posted online. Secret Service monitors social media for threats, and posts that might have been dismissed as venting when made privately now trigger federal investigations.

Common scenarios:

• Angry political posts after controversial presidential actions, containing hyperbolic language about harming the President
• Jokes or memes shared online depicting presidential violence, intended as dark humor but perceived as threats
• Drunken or impulsive posts made during emotional distress, immediately regretted but already seen by thousands
• Posts misinterpreted by readers lacking context about poster’s history, personality, or rhetorical style

Defense presents evidence that posts were intended as jokes, were hyperbolic political commentary, or were made in contexts where reasonable readers would understand they weren’t literal threats. Character witnesses testify that defendants are non-violent, have histories of using hyperbolic language without action, and pose no genuine threat.

Secret Service Investigation Process

Secret Service takes § 871 extremely seriously. Every credible threat generates investigation:

• Agents identify and interview subjects who made alleged threats
• Conduct threat assessments evaluating whether subjects have means, motive, and intent to harm the President
• Search social media, criminal records, mental health histories, and associates
• Interview friends, family, employers to assess dangerousness
• In high-concern cases, seek psychiatric evaluations or surveillance

Most investigations conclude without prosecution—Secret Service determines statements were hyperbole, defendants pose no actual threat, or cases lack prosecutorial merit. But when investigations reveal defendants took steps toward executing threats, have concerning histories, or made particularly explicit threats, U.S. Attorneys pursue charges.

Defense strategy during investigations: cooperate sufficiently to demonstrate defendants pose no threat while avoiding incriminating statements. Attorneys can facilitate interviews where defendants explain context, show they didn’t intend threats seriously, and demonstrate they’re not dangerous—potentially avoiding prosecution altogether.

Collateral Consequences

Section 871 convictions create serious collateral consequences beyond prison:

• **Lifetime Secret Service monitoring** – Defendants who threatened presidents remain on Secret Service watch lists permanently. Any future contact with presidents, presidential candidates, or protected officials triggers immediate Secret Service attention.
• **Firearm prohibition** – Felony convictions prohibit gun possession under 18 U.S.C. § 922(g)(1). Defendants lose Second Amendment rights permanently.
• **Employment barriers** – Security clearances are revoked and can’t be reinstated. Government employment becomes impossible. Many private employers won’t hire convicted felons, especially those who threatened the President.
• **Immigration consequences** – Non-citizens face deportation for threatening government officials. § 871 convictions are crimes involving moral turpitude triggering inadmissibility.

When Statements Cross the Line

Courts have found these statements violate § 871:

• “I’m going to kill the President”—direct, unambiguous threat
• “The President should be assassinated for [policy]”—depending on context, may constitute threat rather than political opinion
• Detailed plans describing how one would harm the President, even if framed hypothetically
• Threatening letters or emails sent directly to the President or Secret Service

Statements courts have found protected:

• “If they harm [political group], we should take out the President”—conditional statement about others’ potential actions
• “Someone needs to stop this President”—vague, could mean electoral defeat rather than violence
• Artistic depictions of presidential harm in plays, songs, or visual art presented as social commentary
• “I wish the President were dead”—expression of desire, not threat to personally act

The line between protected speech and true threats is context-dependent, fact-specific, and often litigated. Identical words might be protected or criminal depending on speaker’s history, audience, medium, and surrounding circumstances.

Todd Spodek built this firm defending clients whose statements—made in anger, as jokes, during mental health crises, or as political commentary—resulted in federal felony charges that could have ended their freedom and futures. Our work taught us that § 871 prosecutions often involve people who said indefensible things without ever intending harm, whose statements were taken out of context, or who were experiencing crises that clouded their judgment. The First Amendment protects even offensive political speech, and distinguishing protected expression from true threats requires careful constitutional analysis. When Secret Service investigates or prosecutors charge threats against the President, early legal representation ensures statements are contextualized properly and constitutional defenses are preserved. If you’re under investigation for or charged with threatening the President, contact us immediately. These cases require immediate attorney involvement—Secret Service interviews without counsel present create evidence used for prosecution, and statements during investigations can’t be taken back. We’re available 24/7.