What federal law says about Trump 'threatening a sitting president'

Former President Donald Trump set off yet another controversy when, on March 29, he posted a short video on his Truth Social platform that included a depiction of President Joe Biden hogtied in the back of a pickup truck.

Trump himself didn't create the image, which has been available on a decal. But some of his critics have been arguing that he is promoting violence against Biden — and getting away with it.

One of those critics is former federal prosecutor Andrew Weissmann, who served as lead counsel for ex-special counsel Robert Mueller's Russia investigation and is now a legal analyst for MSNBC.

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In a March 30 post on X, formerly Twitter, Weissmann posted, "BREAKING: Trump is out on bail in 4 criminal cases. He posted a photo of the president bound, gagged, and shot. Threatening a president is a federal crime and also a violation of bail release conditions. Time for courts to act."

Another former federal prosecutor, law professor Kimberly Wehle, offers in-depth legal analysis of the controversy in an article published by the conservative website The Bulwark on April 4.

"In the days since Trump posted the snippet of video," Wehle explains, "some commentators have suggested that it could be considered a threat against President Biden, and that Trump should face consequences for posting it…. 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?"

Wehle goes on to note that since 1917, it has been a "federal crime to make threats against a sitting president"; the question is whether the video constitutes an actual threat of violence against Biden or could be considered mere "parody."

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"The video (Trump) posted shows a decal of Biden that had been available for sale for more than a year," Wehle points out. "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."

Wehle adds, "Trump didn't buy one himself; he just posted a video. In that video, the Biden image is on-screen for maybe 20 seconds, and is somewhat blurry. So Trump could deny having 'knowingly' done anything wrong."

Nonetheless, Wehle argues that the video at least merits a Secret Service investigation.

"After comedian Kathy Griffin did a photo shoot holding a 'decapitated,' simulated head of then-President Trump," Wehle recalls, "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."

Wehle adds, "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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Kimberly Wehle's full article for The Bulwark is available at this link.