Donald Trump openly talks about having a sitting president, Joe Biden, executed; What does federal law say about that, and could Trump be held accountable?

Donald Trump speaks at NRA convention (Getty)

During a speech Saturday night at a National Rifle Association convention in Dallas, TX, Republican presidential candidate Donald Trump talked about having his opponent, President Joe Biden, executed (see here and here). You read that correctly. The top-line candidate for one of our two major political parties openly talked about having his opponent, a sitting president, executed.

Trump is receiving plenty of criticism in political and media circles, but does this call for more than that? First of all, Trump is dancing awfully close to criminal territory. Consider 18 U.S. Code § 871 - Threats against President and successors to the President. It reads:

(a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.

(b) The terms “President-elect” and “Vice President-elect” as used in this section shall mean such persons as are the apparent successful candidates for the offices of President and Vice President, respectively, as ascertained from the results of the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. The phrase “other officer next in the order of succession to the office of President” as used in this section shall mean the person next in the order of succession to act as President in accordance with title 3, United States Code, sections 19 and 20.

Has Trump committed a crime here? As a layperson who has not studied this area of the law, I'm probably not the one to say. An  attorney with extensive experience in federal criminal law likely would need to examine a transcript of the speech to make a proper determination. The first sentence of this section emphasizes threats made via the U.S. mails, so I'm guessing Trump would be OK under Section 871.

We should note, however, that the second sentence under paragraph (a) of Sec. 871 includes this language: "or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both." That appears to include any such threat against the president -- one that does not involve the mail, the kind Trump made on Saturday night.

Federallawyers/com, the website for the Spodek Law Firm in New York City, focuses on an expansive view of the statute, so let's see what they have to say:

A post at the firm's blog asks this question: Are Threats Against the President a Federal Crime? Here is their answer:

The short answer is yes, threats against the President of the United States or anyone in the presidential line of succession are illegal under federal law 18 U.S. Code § 871. This law makes it a felony to knowingly and willfully make “any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States.”

So if you make a credible threat to harm or kill the sitting U.S. President, even as a joke or political statement, you could end up facing serious criminal charges. Let’s break down the details:

(1) What Counts as an Illegal Threat?

Answer:

For a statement to be considered an illegal threat under 18 U.S. Code § 871, it must meet three criteria:

1. The statement must be a “true threat,” meaning it’s intentional and expresses a genuine intent to inflict harm.
2. The threat must target the current President or anyone next in the line of succession, like the Vice President.
3. The person making the threat must know that it’s illegal. In other words, you can’t accidentally threaten the President and end up in legal trouble.

The law is intended to prevent people from making credible and concerning threats against America’s elected leaders. It’s not meant to punish political dissent or hyperbole. For example, saying “I wish someone would punch the President” or “The President deserves to die” would generally be protected free speech under the First Amendment. But directly threatening to kill or harm the President yourself could get you arrested.

There’s often a fine line between an illegal threat and permissible political speech. Context matters a lot. In the 1969 Supreme Court case Watts v. United States, the defendant said he would shoot President Lyndon B. Johnson if given a gun. But because he made the comment during a political rally as an 18-year-old, the Court ruled it was just “political hyperbole” instead of a true threat.

(2) What Are the Penalties for Threatening the President?

Answer: 

Under 18 U.S. Code § 871, threatening the President is a Class E felony. The maximum sentence is 5 years in federal prison, a $250,000 fine, 3 years of supervised release, and a $100 special assessment.

In practice, sentences tend to depend on the specific nature of the threat and the defendant’s criminal history. First-time offenders often get probation or less than a year behind bars. But repeat offenders or those who make unusually disturbing threats sometimes face years in prison.

(3) When Can You Go to Jail for Threatening the President?

Answer:

Most threats typically need to meet a certain threshold of credibility before prosecutors will file charges. Making an offhand drunken comment about wanting to punch the President or venting frustration online is unlikely to lead to arrest on its own. The threat has to seem concerning enough that authorities need to get involved. According to FindLaw, factors like:

• Having the means and opportunity to carry out the threat
• Making detailed plans for an attack
• Stalking or confronting Secret Service agents
• Sending threatening letters or packages

Could make prosecution more likely. Most defendants also tend to have a history of mental illness or prior run-ins with the law. But sometimes even fairly casual threats said in anger lead to charges if they catch the attention of the Secret Service.

(4) What Are Some Legal Defenses?

Answer: 

Fighting federal threat charges involves showing either that:

1. The statement wasn’t really a “true threat” under the law
2. The defendant struggled with mental illness or emotional distress when making the threat

To argue the statement wasn’t a true threat, the defense may claim it was just a joke, political rhetoric, or that the person didn’t actually intend to harm anyone. The context around the threat matters a lot here.

Defendants can also argue they struggled with mental health issues like schizophrenia or severe depression that impacted their judgment. If successful, this could lead to commitment to a psychiatric facility instead of prison. But mental illness alone is rarely enough to avoid conviction altogether.

(5) When Can the Secret Service Investigate Threats?

Answer:

The U.S. Secret Service is authorized to investigate any potential threats against the President, Vice President, President-elect and Vice President-elect. They have jurisdiction even if it’s unclear at first whether the threat violates federal law. According to the Department of Justice:

The United States Attorney must carefully consider the possible adverse effect before releasing information to the public concerning cases and matters involving threats against the President (18 U.S.C. § 871) as well as other Secret Service protectees (18 U.S.C. § 879). This exercise of caution should extend to secondary sources of press information as well (search warrants, affidavits, etc.), and the use of tools such as sealed affidavits should be considered.

        So the Secret Service often keeps threat investigations confidential to avoid inadvertently                     encouraging copycats or revealing too much about their protective methods. They may conduct         surveillance, obtain search warrants, or refer cases for federal prosecution if the threats seem                 credible enough to pose a safety risk.

(6) When Can You Go to Jail for Encouraging Violence Against Public Officials?

Answer:

In some cases, people face charges for encouraging others to attack public officials rather than making threats themselves. Federal law 18 U.S. Code § 373 prohibits trying to get someone to commit a violent federal crime. For example, posting “someone should shoot the President” online or sharing information to help others plan an assassination attempt.

Prosecutors would need to prove the person intended for another individual to commit murder or assault and took substantial steps to make it happen. But repeatedly calling for violence against elected leaders could potentially lead to arrest even without explicit threats.

(7) Recent Examples of Prosecutions for Threatening President Biden or Trump

Answer:

There has been an uptick in threat cases during recent administrations as political divisions widen. Some examples since 2016 include:

• An Illinois man arrested in 2022 for allegedly threatening to kill President Biden and members of Congress.
• A Florida man indicted in 2022 for making online death threats against Biden and sending disturbing letters.
• An Ohio man prosecuted in 2018 for threatening to assassinate President Trump at a steakhouse.
• A Washington man sentenced to prison in 2021 for making death threats against Trump on Facebook.

Defense lawyers accused some of these defendants of struggling with mental illness. But prosecutors say the threats still caused fear and disruption which justified charges. Several cases led to multi-year prison sentences even without evidence of actual attack plans.

(8) The Bottom Line

Threatening the President of the United States is very much illegal under federal law. Even jokes or offhand comments about harming America’s elected leaders can potentially lead to felony charges if deemed credible enough. The Secret Service and federal prosecutors tend to take these threats very seriously given the risks they could pose. So it’s wise to avoid making statements that could be interpreted as calling for violence against public officials, even if you don’t really intend to act on them.

What's my take on Trump's threatening statements against Biden, based on the insights of federallawyers.com?

* As often is the case in criminal law, a lot of discretion is left to federal investigators and prosecutors. My guess is they will let someone of Trump's fame, wealth, and power off the hook. But is that the way it should be handled? I don't think so, That suggests we have a two-tiered justice system that benefits the privileged -- and Trump already has received numerous breaks from courts -- especially the U.S. District Court in Florida (see here and here)and the U.S. Supreme Court (see here and here).

* This is not the first time Trump has threatened a public official. He has called for Mark Milley, former chairman of the Joint Chiefs of Staff, to be put to death for treason.

* This is not the first time Trump has used violent rhetoric. In fact, it has become a staple of his on the campaign trail. Consider this from an October 2023 post here at Legal Schnauzer:

In speeches, interviews and on social media in recent weeks, Trump:

• Said former Joint Chiefs of Staff Chairman Gen. Mark Milley committed "treason" and suggested he be executed.
  

• Called for Judge Engoron to be disbarred, thrown out of office and criminally prosecuted.
  

• Labeled New York Attorney General Letitia James — who's suing Trump for fraudulently inflating his wealth and assets on financial records — a "racist" and "monster."

• Said special counsel Jack Smith — who's prosecuting Trump in the Jan. 6 and classified-documents cases — is "deranged" and a "psycho" who "looks like a crackhead."
  

• Posted online, "IF YOU GO AFTER ME, I'M COMING AFTER YOU!" — one day after swearing in federal court that he would not intimidate witnesses in the election interference case.
  

• Mocked Paul Pelosi after he was brutally assaulted by a home intruder who was searching for his wife, former Speaker Nancy Pelosi.
  

• Urged police to shoot shoplifters on sight.
  

• Said migrants illegally crossing into the U.S. are "poisoning the blood of our country."

* Consider Trump's audience. He encouraged the nation's largest gathering of gun nuts to consider the execution of our president. Did Trump intend for a member of the NRA or one of his MAGA supporters, who may or may not be of sound mind, to carry out his threat? Consider these words from federrallawyers.com (FLC).

(a) In some cases, people face charges for encouraging others to attack public officials rather than making threats themselves. Federal law 18 U.S. Code § 373 prohibits trying to get someone to commit a violent federal crime. For example, posting “someone should shoot the President” online or sharing information to help others plan an assassination attempt.

Prosecutors would need to prove the person intended for another individual to commit murder or assault and took substantial steps to make it happen. But repeatedly calling for violence against elected leaders could potentially lead to arrest even without explicit threats.

(b) Evidence is mounting that Trump might have a form of mental illness, with his recent inability to speak in coherent sentences at campaign rallies. From the FLC website:

Defense lawyers accused some of these defendants of struggling with mental illness. But prosecutors say the threats still caused fear and disruption which justified charges. Several cases led to multi-year prison sentences even without evidence of actual attack plans.

 * Could Trump be counting on someone from the NRA or MAGA to carry out his idea of executing Joe Biden? Could he be engaged with someone in formulating an attack plan? I wouldn't count it out, and federal authorities should not count it out, either. At the very least, Trump and his associates need to be investigated.

* A final thought: Who would stand to benefit the most from the death of Joe Biden? The answer almost certainly would be Donald Trump. Take Biden out of the picture, and the Democratic Party goes into disarray, allowing Trump to virtually waltz to the White House and likely stay out of prison, related to the four criminal cases pending against him. Is Donald Trump that evil? Who knows how evil this guy is? We would ask Jeffrey Epstein if he were still alive.