Threats to the President-Elect, Whoever He or She Might Be

Judge David Campbell’s opinion Thursday in U.S. v. Ortiz (D. Ariz.) deals with a somewhat unusual sort of threat. On Election Day 2024, Ortiz tried to file in court a document stating, “‘I chose to execute the newly elected POTUS by firing an M-16A2 Service Rifle with a magazine of 6 rounds.” (The document also noted “that the ‘newly elected POTUS’ would be ‘either…K.D. Harris or D.J. Trump,’” but the court said that, “[b]ecause the document is not made part of the indictment, … the Court has not relied on it in ruling on the motion to dismiss.”)

For this, Ortiz was charged with three counts. In Count 1, he was charged under 18 U.S.C. § 871, which “criminalizes threats of violence made against the President, the President-elect, or the Vice President,” with threatening VP Harris; the court allowed the prosecution to go forward on this count:

Defendant argues that on November 5, 2024, there was no identifiable “newly elected POTUS” because it was Election Day and dozens of candidates were on the ballot…. [But] if it is not clear whether a statement is protected expression or a true threat, it generally should be submitted to the jury. On election day, only two candidates—Vice President Kamala Harris and former President Donald Trump—realistically could have become the “newly elected POTUS.” Count 1 specifically identifies Vice President Harris as the alleged victim. Defendant can argue to the jury that his failure to identify her specifically makes his alleged statement too indefinite to constitute a true threat, but the Court cannot conclude as a matter of law that the existence of two possible targets of a death threat means that neither has been truly threatened….

In Count 2, Ortiz was charged under 18 U.S.C. § 879, which “criminalizes threats of violence against a former President.” Again, the court allowed the prosecution to go forward:

Defendant argues that § 879 applies only to threats against a former President and the threat alleged in Count 2 was not against a former President, but against the “newly elected POTUS.” As just noted, however, one of the two primary candidates for the presidency was Donald Trump, who was a former President. Thus, one of the two possible targets of the Count 2 threat was protected by § 879. And as already explained, the Court cannot conclude as a matter of law that the existence of two possible targets of a death threat means that neither has been truly threatened. If the jury finds both were threatened by Defendant’s statement at issue in Count 2, then a former President was threatened and § 879 applies.

In Count 3, Ortiz was charged under 18 U.S.C. § 871 as to threatening President-Elect Trump as to a different statement: “[Defendant] will be entitled to shot the incoming fraudulent elected POTUS from 300 or 666 yards away with 666 rounds for an M-16A2 service rifle at the inauguration on Jan 20, 2025.” Again, the court allowed this:

Defendant claims that the statement charged in Count 3 is not a true threat because the words “will be entitled” suggest any threat was conditional. “While the conditional nature of a statement may be a factor in determining whether it constitutes a true threat, conditional language is not dispositive.” “Indeed, most threats are conditional; they are designed to accomplish something; the threatener hopes that they will accomplish it, so that he won’t have to carry out the threats.”

Defendant contends that his use of the Court filing process, the number 666, and the words “fraudulent elected” separates the charged statement from a “sincere intention to cause harm[.]“But the First Amendment does not “require proof that the defendant intends to carry out the threat—that is, actually to inflict the harm that he has threatened. One of the chief evils wrought by a threat is its deleterious and coercive effect on the victim[,]…and that effect is not diminished merely because the defendant is bluffing.”

{Defendant argues in his reply that the statements alleged in the indictment use the past tense—”chose” and “shot”—showing that they were not true threats. Doc. 31 at 2-3. Because this argument was raised for the first time in a reply brief, the Court will not consider it.}

Abbie S. Broughton represents the government.

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