Did Trump Really Threaten Biden?
An ex-president posted a video depicting the current president being kidnapped. What does the law say?
BY NOW YOU HAVE PROBABLY HEARD about the short video that Donald Trump posted on social media on Friday showing a pickup truck decorated with “Trump 2024” and a decal on the tailgate: a life-sized photoshopped image of President Joe Biden hogtied and lying on his side, as if confined in the bed of the truck. The video was filmed the day before in Long Island, New York, where Trump was attending a wake for a police officer.
In the days since Trump posted the snippet of video, some commentators have suggested that it could be considered a threat against President Biden, and that Trump should face consequences for posting it. For instance, here is former federal prosecutor Andrew Weissman, who was lead counsel in the Mueller investigation into Russia’s interference in the 2020 presidential election:
Given the seriousness of both the allegation and Weissman’s reputation, it’s worth unpacking whether Trump’s post might go beyond poor humor and very bad taste. Could it, at least in theory, result in another brush with the law for Trump?
Since February 1917, it’s been a federal crime to make threats against a sitting president. Congress enacted the statute after three presidents were assassinated—President Lincoln in 1865, President Garfield in 1881, and President McKinley in 1901. Two months after the statute was enacted, the United States entered the war in Europe. Less than a year later, sixty cases had already been prosecuted under the law, with thirty-five convictions. The number of prosecutions for threatening presidents fell dramatically between 1920 and the mid-1960s, after which they ticked back up, due in part to repeat offenders, many of whom suffered from mental illness, and also due to heightened security following the assassination of President Kennedy.
The current law applies not only to presidents but also to vice presidents, presidents-elect, and vice-presidents-elect. Appearing in 18 U.S.C. § 871, it’s triggered if a threat to a sitting president (or one of these other successors) is done “willfully” or “knowingly.” A conviction carries up to five years in prison and a $250,000 fine. Courts have generally interpreted the law to require that the government show that a reasonable person in the defendant’s position would foresee that his communication would be perceived by the recipient as a threat. The threat also has to be made intentionally, rather than by mistake or coercion. As an example, the statute explicitly states that knowingly and willfully depositing a letter in the U.S. mail containing a threat “to take the life of, to kidnap, or to inflict bodily harm upon” the president would constitute a crime. Most courts have not required proof that the defendant actually intended to carry out the threat, however.
Does Trump’s case meet those requirements? The video he posted shows a decal of Biden that had been available for sale for more than a year. (Note that Weissman is mistaken in saying the video shows Biden “bound, gagged, and shot”; Biden does not appear to be either gagged or shot in the image.) Some would argue that the image might plausibly be construed as a satire or parody. Trump didn’t buy one himself; he just posted a video. In that video, the Biden image is on-screen for maybe twenty seconds, and is somewhat blurry, so Trump could deny having “knowingly” done anything wrong.
Then again, Trump inspired a deadly insurrection at the U.S. Capitol on January 6, 2021. His violent social media postings have gravely serious implications.
In the past, disturbing pictures have contributed to criminal liability for making threats under § 871. In United States v. Hoffman, for example, a federal court affirmed the conviction of a man, David Hoffman, who sent a letter to President Ronald Reagan stating, “Ronnie, Listen Chump! Resign or You’ll Get Your Brains Blown Out.” The letter also contained a crude drawing of a gun with a bullet coming out of the barrel. The court deemed it a clear and unambiguous threat that a person in the White House mail room “would reasonably expect to be taken seriously.” The fact the U.S. Secret Service was immediately alerted, and that Hoffman carefully crafted the letter, put it in an envelope, and deposited it in the U.S. mail bolstered the court’s finding that substantial evidence supported the conviction. Hoffman was apparently upset that Reagan refused to pardon the Reverend Sun Myung Moon, founder of the Unification Church who was imprisoned for tax evasion in 1984.
Also in 1984, a federal appeals court upheld the conviction of another man, Josiah Merrill III, who sent letters to two judges, a newspaper, and a church leader in Arizona containing the words “Kill Reagan” and depicting Reagan’s head impaled on a stake and dripping blood. One letter had a bullet taped to it with an arrow pointing at a picture of the president’s head. The court emphasized that whether a “true threat” exists under the statute is a question of fact for a jury to decide. As in any case, then, the question of criminal liability under § 871 largely boils down to whether prosecutors are willing to bring charges.
These days, the meteoric rise of unregulated hate and violence on social media could inure prosecutors and juries to the very notion that violent videos attacking Biden could conceivably be criminal. Moreover, courts have held that § 871 must be interpreted with the First Amendment in mind; what amounts to political hyperbole or partisan opposition—rather than a “true threat”—doesn’t count. Trump has made a cottage industry around arguing that the First Amendment magically nullifies crimes (an argument he’s lost once in the federal January 6th prosecution and should continue to lose for the most part). Any legal pushback on this kind of visual violence would undoubtedly be met with the same, tired refrain.
But that doesn’t mean there’s nothing that can be done about a former president posting violent images of a sitting president (who also happens to be his rival for the White House come November). Since the 1890s, the Secret Service has been protecting presidents, and today it’s responsible for investigating threats. After comedian Kathy Griffin did a photo shoot holding a “decapitated,” simulated head of then-President Trump, the Secret Service conducted an investigation, prompting Griffin to retain a criminal defense attorney. Although there was never any serious question as to whether her comic routine was a true threat, that didn’t stop the Secret Service from checking it out. The same thing should happen here.
The more pragmatic question around the Biden video isn’t whether Trump’s action constituted a crime, but whether the Biden administration has the appetite to do anything about it. We all know the answer to that one. Trump is a master bully. He always gets away with it. He will this time, too.
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