Threats to the President—Mental Patient

A mental patient in East St. Louis was indicted by a federal grand jury on March 23, but the indictment was unsealed only last week.^[1] The indictment against Arafat Nijmeh, a Palestinian man, raises questions “about how to treat such comments by mental patients.”^[2] According to the indictment, Mr. Nijmeh threatened to harm President Bush, “first by telling two workers at his treatment center that he wanted to castrate Bush, then a day later to Secret Service agents notified by the center,” saying that his threat “is not too harsh, considering what he has done to my country.”^[3]

According to Eric Pungolt, the head of the Secret Service’s Springfield, Illinois Office, the Secret Service “takes all threats seriously and weighs factors including the suspect’s mental state or placement in a treatment center in deciding the threat’s validity and whether to the a prosecutor involved.”^[4] Because Mr. Nijmeh was known to be in a mental health care facility, it is possible that there are details of the investigation that have been kept secret.^[5] But it raises questions of when a mere statement raises to a federal crime.

According to 18 U.S.C. § 871(a), it is a crime for a person, “knowingly and willfully,” to make a 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 successor in interest. Making such a threat carries a potential fine, imprisonment for up to five years, or both. As written, the law is extremely broad; there is no “seriousness” component in the law as written. The Supreme Court, however, “requires the Government to prove a true ‘threat.’”^[6] Political hyperbole does not fit within the statute’s provisions, and the language of section 871 must be interpreted “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”^[7] The defendant need only intend to say the words, “in a context and under such circumstances that a reasonable person would foresee that the statement would be interpreted by persons hearing … it as a serious expression of an intention to inflict bodily harm upon … the life of the President … [and] that the statement was not the result of mistake, duress or coercion.”^[8] A true threat is also not one made in mere political argument, idle talk, or jest.^[9]

Nonetheless, it is important to realize that the statute criminalizes the threat, not the intent to carry it out,^[10] nor the ability to carry it out. If the defendant is in jail when he makes the statement, he can still be prosecuted for threatening the President.^[11] Furthermore, evidence of mental incapacity can be excluded from trial because the activity criminalized by section 871 “requires only a showing of general intent.”^[12]

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[1] Mental Patient Charged With Threatening President Bush, Associated Press (via WTOL TV), Apr. 7, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Watts v. United States, 394 U.S. 795, 708 (1969).
[7] Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
[8] United States v. Rogers, 488 F.2d 512, 514 n.3 (5th Cir. 1974) rev’d on other grounds, 422 U.S. 35 (1975).
[9] United States v. Howell, 719 F.2d 1258, 1260 (5th Cir. 1983).
[10] Pierce v. United States, 365 F.2d 292, 294 (10th Cir. 1966).
[11] United States v. Glover, 846 F.2d 339, 343-44 (6th Cir. 1988).
[12] United States v. Johnson, 14 F.3d 766, 769 (2d Cir. 1994).