|9-65.100||Protection of the President, Presidential Staff, and Certain Secret Service Protectees|
|9-65.110||Protection of the President and Secret Service Protectees—Notification Requirement|
|9-65.140||Publicity Concerning Threats Against Government Officials|
|9-65.200||Threats Against the President and Successors to the Presidency; Threats Against Former Presidents; and Certain Other Secret Service Protectees|
|9-65.300||Presidential Assassination Statute—18 U.S.C. § 1751|
|9-65.400||Protection of Temporary Residences and Offices of the President and Other Secret Service Protectees (18 U.S.C. § 1752)|
|9-65.402||Presidential Visit—United States Attorney's Responsibility|
|9-65.463||Competency—Utilization of Federal Facility|
|9-65.500||Interference with or Obstruction of the Secret Service—18 U.S.C. § 3056(d)|
|9-65.600||Assaults on and Kidnapping of Federal Officers|
|9-65.611||General Prosecutive Policy Under 18 U.S.C. § 111|
|9-65.700||Congressional, Cabinet, and Supreme Court Assassination, Kidnapping, and Assault (18 U.S.C. § 351)|
|9-65.800||Protection of Foreign Officials, Internationally Protected Persons (IPPs) and Official Guests|
|9-65.810||Prosecutive Policy—Preference for Local Disposition|
|9-65.811||Authority to Initiate Prosecution|
|9-65.882||Demonstrations—Investigative Decisions by United States Attorneys|
|9-65.900||Protection of a Member of a Federal Official's Family (18 U.S.C. § 115)|
9-65.100 - Protection of the President, Presidential Staff, and Certain Secret Service Protectees
The primary statutes relevant to protection of the President and other Secret Service protectees are as follows: 18 U.S.C. §§ 871, 879, 1751, 1752, and 3056(d). Other relevant statutes include: 18 U.S.C. §§ 115, 351, and 2332b. Supervisory authority over 18 U.S.C. §§ 871, 879, 1751, and 3056(d) rests with the Counterterrorism Section (CTS) of the National Security Division.
As of April 24, 1996, all Federal officials covered under 18 U.S.C § 1751 and related statutes are also covered under the expanded coverage provided in § 1114 of Title 18 for all employees of all branches, departments, and agencies of the United States Government, including active duty military personnel. See Antiterrorism and Effective Death Penalty Act of 1996, § 727(a), Pub. L. 104-132, 110 Stat. 1214, 1302. However, unlike § 1751, section 1114 requires that the violent attack upon the Federal official be committed while the Federal official "is engaged in or on account of the performance of official duties." Hence, § 1751 is a broader statute and should continue to be used for those Federal officials encompassed within its ambit. Section 1114 and related statutes are now available, however, for violent attacks upon other Federal officials and employees of the White House and other Executive Branch agencies not covered by § 1751.
It should also be noted that family members of all Federal employees are now protected by § 115(a)(1) of Title 18 against assault, kidnapping, and murder, as well as attempts or threats to assault, kidnap, or murder. However, such violent acts must be done "with the intent to impede, intimidate, or interfere with" such Federal employee "while engaged in the performance of official duties, or with intent to retaliate against" such Federal employee. Violent attacks against the family members of Federal officials encompassed by § 1751 and related statutes, however, do not require such an intent element.
While the threat provisions of § 871 relating to the President and § 879 relating to Former Presidents and other Secret Service protectees remain operative, § 115(a)(2) of Title 18 now covers threats against all Federal employees when such threat is done "with intent to impede, intimidate, or interfere with" such Federal employee "while engaged in the performance of official duties, or with intent to retaliate against" such Federal employee. As with violations of § 1751, sections 871 and 879 remain the preferred prosecutive vehicle for threats against the individuals protected by those sections.
In addition, § 115(a)(2) of Title 18 was expanded, as of April 24, 1996, to cover assault, kidnapping, and murder, as well as attempts to kidnap or murder or threats to assault, kidnap, or murder, any former Federal employee with intent to retaliate against such person on account of the performance of official duties. See Antiterrorism and Effective Death Penalty Act of 1996, § 727(b), Pub. L. 104-132, 110 Stat. 1214, 1302. Moreover, the family members of all former Federal employees are now covered under § 115 against assault or murder, including any attempt to assault or murder, directed towards them on or after April 24, 1996, provided such act was done with intent to retaliate against the former Federal employee on account of the performance of his/her official duties during the term of his/her Federal service.
Investigative jurisdiction for violations of 18 U.S.C. §§ 871, 879, and 1752 rests with the Secret Service while the Federal Bureau of Investigation (FBI) has jurisdiction over 18 U.S.C. § 1751. Steps should be taken to insure that the FBI maintains close liaison with the Secret Service throughout the conduct of investigations under § 1751. There is an "Agreement of Procedures"|C727 between the Secret Service and the FBI regarding the transfer of responsibility in the event of the killing of a Secret Service protectee or any other violation of law involving a Secret Service protectee for which the FBI has investigative jurisdiction. As of July 1996, this 1978 agreement remains in effect; however, contact should be made with the Terrorism and Violent Crime Section (TVCS) to verify the current procedures.
9-65.110 - Protection of the President and Secret Service Protectees—Notification Requirement
CTS should be telephonically notified immediately upon the initiation of any investigation under 18 U.S.C. § 1751. In determining whether a Presidential or Vice-Presidential staff member is a protected person for purposes of determining whether a violation of § 1751(a)(2) has occurred, CTS should be contacted to verify whether the person was appointed under section 105(a)(2)(A) of Title 3, United States Code.
9-65.140 - Publicity Concerning Threats Against Government Officials
Media attention given to certain kinds of criminal activity seems to generate further criminal activity; this is especially true concerning Presidential threats which is well documented by data previously supplied by the United States Secret Service. For example, in the six-month period following the March 30, 1981, attempt on the life of President Reagan, the average number of threats against protectees of the Secret Service increased by over 150 percent from a similar period during the prior year.
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.
See also Media Guidelines, JM 1-7.000 et seq., and 28 C.F.R. § 50.2.
9-65.200 - Threats Against the President and Successors to the Presidency; Threats Against Former Presidents; and Certain Other Secret Service Protectees
The Counterterrorism Section of the National Security Division has supervisory authority over 18 U.S.C. §§ 871 and 879 cases. As great caution must be taken in matters relating to the security of the persons protected by 18 U.S.C. § 871, United States Attorneys are encouraged to consult with the Counterterrorism Section (CTS) of the National Security Division when they have doubts on the prosecutive merit of a case. For the same reason, dismissal of complaints under 18 U.S.C. § 871, when the defendant is in custody under the Mental Incompetency Statutes (18 U.S.C. §§ 4244, 4246), requires approval from CTS. In other cases, United States Attorneys must consult prior to dismissing a count involving, or entering into any sentence commitment or other case settlement involving a § 871 charge.
9-65.300 - Presidential Assassination Statute—18 U.S.C. § 1751
Title 18 U.S.C. § 1751 makes it a federal offense for anyone to assault, kill or kidnap, or attempt or conspire to kill or kidnap the President and Vice President of the United States, among others. The Counterterrorism Section of the National Security Division has supervisory authority over matters involving section 1751.
9-65.400 - Protection of Temporary Residences and Offices of the President and Other Secret Service Protectees (18 U.S.C. § 1752)
The Secret Service will conduct investigations of alleged violations of Title 18 U.S.C. § 1752 and forward copies of all investigative reports to the United States Attorney. Inquiries regarding actual or intended violent conduct or acts of terrorism should be directed to the Counterterrorism Section, National Security Division. In particular, the Counterterrorism Section has supervisory responsibility for violent crimes against the President or other Secret Service protectees, and over acts of terrorism directed at temporary residences and offices of the President or other protectees; such conduct may constitute violations of § 1752 in addition to the applicable federal felony statutes.
If the buildings constituting temporary offices of the President or the President's staff or if a building the President is temporarily visiting is Federal property under the charge and control of the General Services
Administration, and disruptive conduct occurs on such property, violators may also be prosecuted for violation of the Rules and Regulations Governing Conduct on Federal Property found in 41 C.F.R. § 102-74, Subpart C1-19.3. These regulations have been upheld as constitutional against attacks for vagueness and overbreadth. See United States v. Baldwin, 745 F.3d 1027 (10th Cir. 2014); United States v. Cassiagnol, 420 F.2d 868 (4th Cir. 1970), cert. denied, 397 U.S. 1044 (1970); United States v. Sroka, 307 F. Supp. 400 (E.D.Wis. 1969); United States v. Akeson, 290 F. Supp. 212 (D.Colo. 1968).
9-65.402 - Presidential Visit-United States Attorney's Responsibility
When a Presidential visit is scheduled, the United States Attorney should be alert to indications of plans by individuals or groups which may result in activity in violation of Title 18 U.S.C. § 1752. If such activity is anticipated, the United States Attorney should, after consultation with the Secret Service, consider whether preventive measures such as a temporary restraining order would be appropriate, and whether the United States Attorney's Office should be represented at the scene. The United States Attorney should also maintain contact with the appropriate Federal, state, and local law enforcement agencies in order to ensure that background information on the individuals or groups concerned is properly disseminated.
Although state and local ordinances differ as to the exact extent of their coverage, conduct proscribed in 18 U.S.C. § 1752 generally is prohibited in some form at the state or local level. Section 1752 establishes a Federal offense, thus creating Secret Service jurisdiction to prevent such activities.
9-65.463 - Competency—Utilization of Federal Facility
Because it is of the utmost importance that the President be fully protected at all times against deranged individuals, if the mental competency of a violator of section 1752 is in question, commitment to an appropriate Federal Medical Center, identified through coordination with the Secret Service, is recommended as an exception to the policy favoring utilization of the services of the local or nearest available psychiatrist or hospital. But see In re Newchurch, 807 F.2d 404 (5th Cir. 1986).
9-65.500 - Interference with or Obstruction of the Secret Service—18 U.S.C. § 3056(d)
Section 3056(d) of Title 18 prohibits knowingly and willfully obstructing, resisting, or interfering with a Federal law enforcement agent who is engaged in protective functions. The Secret Service will conduct investigations of alleged violations of 18 U.S.C. § 3056(d) and forward copies of all investigative reports to the United States Attorney and to the Counterterrorism Section (CTS) of the National Security Division. The Counterterrorism Section has supervisory responsibility over 18 U.S.C. § 3056(d).
9-65.600 - Assaults on and Kidnapping of Federal Officers
The Organized Crime and Gang Section (OGCS) or Human Rights and Special Prosecutions (HRSP) Section (if international) has supervisory authority over 18 U.S.C. §§ 111 and 1114.
All assaults on, kidnapping of, and murders of Federal officers will be investigated exclusively by the Federal Bureau of Investigation (FBI) except:
- The FBI does not, at the request of the Treasury Department, investigate assaults on, kidnapping of, or murders of any Treasury Department personnel. This includes Secret Service, Bureau of Alcohol, Tobacco and Firearms (BATF), Internal Revenue Service (IRS), and Customs. However, if the Bureau believes that its absence from a case is materially affecting the interests of justice, it is to call this to the attention of the Attorney General.
- In accordance with an agreement between the Postal Service and the Justice Department, investigative jurisdiction of offenses in Postal Service buildings against postal laws, or involving, among other things, offenses committed by postal employees, is with the Postal Service inspectors. Thus, the responsibility for investigating the large majority of cases involving postal employees that can be expected to arise under 18 U.S.C. § 111 will be with the postal inspectors. FBI investigation of assaults on, kidnapping of, and murders of Postal Service employees is limited to the following three situations: (1) assaults, kidnapping, or homicides of postal employees which are incidental to some other crime which is within the investigative jurisdiction of the FBI; (2) assaults, kidnapping, or homicides of Postal Inspectors believed to have been committed by persons who are not employees of the Postal Service; (3) in any other situation where the FBI is directed by the Department of Justice to investigate.
9-65.611 - General Prosecutive Policy Under 18 U.S.C. § 111
Title 18 U.S.C. § 1114 extends the protection of 18 U.S.C. § 111 to a diverse collection of Federal government personnel. The primary focus of the Department's enforcement program is on those employees who have law enforcement duties which regularly expose them to the public (e.g., agents of the FBI, DEA, ATF, Secret Service, IRS, Customs, Postal Inspectors, etc.) and on staff members of Federal correctional institutions. Forcible acts against these categories Federal employees should be prosecuted vigorously. By contrast, offenses against other categories of Federal employees should be referred to the local prosecutor unless the offense is particularly aggravated or there are other unusual factors present justifying Federal action.
9-65.700 - Congressional, Cabinet, and Supreme Court Assassination, Kidnapping, and Assault (18 U.S.C. § 351)
Section 351(g) of Title 18, United States Code, assigns investigative jurisdiction over these offenses to the Federal Bureau of Investigation (FBI). The Counterterrorism Section of the National Security Division has supervisory authority over 18 U.S.C. § 351, and should be notified telephonically immediately upon the initiation of an investigation.
9-65.800 - Protection of Foreign Officials, Internationally Protected Persons (IPPs) and Official Guests
United States Attorneys should immediately furnish information indicating the existence of any hazard or planned, deliberate attack or conspiracy against foreign officials to the FBI Field Office for FBI dissemination to the United States Secret Service, Department of State, and other interested persons and agencies. United States Attorneys should also provide ongoing assistance to the United States Secret Service in coordinating and obtaining the support of local agencies in the provision of protective services. Supervisory authority over statutes governing the protection of foreign officials, internationally protected persons (IPPs), and official guests rests with the Counterterrorism Section (CTS) of the National Security Division. CTS has supervisory authority over 18 U.S.C. § 970(b).
- FBI - Responsibility for the Federal investigation of all violations of protection of foreign officials, internationally protected persons (IPP) and official guests statutes (18 U.S.C. §§ 112, 878, 970, 1116, 1117 and 1201) has been assigned to the Federal Bureau of Investigation (FBI).
- Treasury Department - The assignment of investigative jurisdiction to the FBI over crimes against foreign officials, internationally protected persons and official guests does not limit the power of the Secretary of the Treasury in the discharge of his/her statutory protective responsibilities. See 3 U.S.C. § 202; 18 U.S.C. § 3056.
9-65.810 - Prosecutive Policy—Preference for Local Disposition
In enacting legislation directed to the protection of foreign officials, internationally protected persons, and official guests, Congress has repeatedly made it clear that such statutes are not intended to preempt the application of State and local criminal law governing the same matter. See Pub. L. 92-539, §§ 2, 3; Pub. L. 94-467, § 10. In so doing, Congress has recognized the traditional responsibility of State and local law enforcement authorities for handling common law crimes. Consequently, in cases where State or local law enforcement authorities express a strong preference to prosecute an offense falling under §§ 112, 878, 970, 1116, 1117 and 1201 which relates to foreign dignitaries, the United States Attorney should consider deferring to such request and consult with the Criminal Division in instances where there is disagreement with such authorities as to the appropriate entity to assert criminal jurisdiction.
[cited in JM 9-65.811]
9-65.811 - Authority to Initiate Prosecution
In respect to offenses committed against foreign officials, internationally protected persons, and official guests within the United States, United States Attorneys may ordinarily initiate prosecution without consultation with the Criminal Division. But see JM 9-65.810, where there is a disagreement between Federal and state/local law enforcement authorities as to who should exercise prosecutive jurisdiction. However, because of the unique foreign policy considerations relating to the diplomatic relationship between the United States and Taiwan, all offenses against members of Taiwan's Taipei Economic and Cultural Representative Office (TECRO) in the United States should, absent emergency circumstances, be brought to the attention of the Criminal Division prior to Federal arrest and should, in all cases, be brought to the attention of the Criminal Division prior to indictment.
In cases involving offenses against internationally protected persons committed abroad, legal issues concerning the exercise of extraterritorial jurisdiction, the extraterritorial scope of the statutes, foreign policy considerations, the procurement of witnesses and costs may be involved. Therefore, in cases involving the assertion of extraterritorial jurisdiction under any of these statutes, it is mandatory that Federal prosecutors seek approval from the Criminal Division prior to the initiation of any proposed investigation or prosecution. See JM 9-2.136.
[updated April 2018]
9-65.880 - Demonstrations
Normally the violations of 18 U.S.C. § 970 under consideration occur in the course of demonstrations involving a sizable number of persons. When this is so, United States Attorneys should look to the local police to maintain order and to make any necessary arrests. However, that alone does not relieve Federal officials of responsibilities in the matter. Those responsibilities commence with participation in the coordination of appropriate exchange of intelligence information on potential disturbances likely to affect a foreign facility and arrangements for needed law enforcement response.
As pre-planned or immediately upon notification of a demonstration likely to result in a disturbance, an Assistant United States Attorney should be assigned to monitor the activity on the basis of spot reports from the Federal Bureau of Investigation (FBI) observers at the scene. Presumably the local police will make arrests as the occasion and their judgement dictate. Generally, conduct in violation of the act will also violate local law, but, if only a Federal violation appears, an arrest may be made without obtaining prior authorization from the Criminal Division.
Some suggestion has been made that the FBI observers should make such arrests, but this would not only defeat their purpose as observers but also, because they do not operate in uniform, would be a most ill-advised enforcement effort, inviting the very resistance a uniform is designed to aid in dispelling. This does not mean that an agent on the scene would stand idly by while a mission member entering or leaving the premises was attacked in his/her immediate vicinity. But absent some such exceptional circumstances, any necessary protective measures for protected foreign officials, including arrests for attacks made on their persons should be taken by uniformed officers.
The Counterterrorism Section of the National Security Division has general responsibility for those matters which are of Federal interest. United States Attorneys should be alert for indications of militant political motivation, international in scope with subversive overtones, in reported violations and insure that the presence of any such features of other factors, which may highlight the Federal interest as well as affect the prosecutive merit of a possible violation, are reflected in the FBI's report.
9-65.881 - Demonstrations—Procedures
Upon receipt of information indicating a violation or potential violation of 18 U.S.C. § 970, the Federal Bureau of Investigation (FBI), after notifying the Department of State and consulting with the appropriate United States Attorney, will initiate such investigation as is deemed necessary if it is determined that Federal presence is warranted. The State Department Operations Center, (202) 647-1512, can quickly locate and have the appropriate State Department officials contact the U.S. Attorney in cases wherein the United States Attorney is uncertain as to whether the incident will adversely affect the foreign relations of the United States.
The determination made and action initiated, if any, will be reported by the FBI to the Criminal Division, United States Attorney concerned, United States Secret Service, and Department of State without delay. The Bureau will bring to the attention of the Criminal Division for conclusion any unresolved difference of opinion among the Bureau, Secret Service, Department of State, and United States Attorney concerning action or lack thereof by any of them. If a United States Attorney's Office receives a complaint of violation of section 970, the complainant should be referred to the FBI field office concerned, with advice that, as indicated in the Department of State communication, most conduct in possible violation of section 970 is more appropriate for disposition under local law, but the FBI will report the complaint to the appropriate United States authorities for consideration of possible Federal disposition.
When the offense is of a nature that merits Federal prosecution, an investigation should be pursued without regard for whether the pertinent foreign officials will agree to appear as witnesses at an ensuing trial. Once a subject has been identified and sufficient evidence has been developed to form the basis for Federal charges, a determination should be sought as to whether the relevant foreign officials will agree to testify.
In instances where there is a Federal interest sufficient to proceed under one of the protection of foreign officials statutes, it may still be advantageous to defer to a local prosecution. This is particularly true where there is a local statute which better fits the crime than does the Federal statute. However, in such cases, the United States Attorney's Office should insure that the FBI monitors the progress of the local prosecution. Should local efforts be dropped prior to a trial, the matter should be reevaluated by the United States Attorney's Office and a new prosecutive determination should be rendered.
9-65.882 - Demonstrations—Investigative Decisions by United States Attorneys
Most demonstrating groups carefully follow the requirements and instructions of the local police officers and when agents of the Federal Bureau of Investigation (FBI) have explained the Federal statutes to them, the demonstrators have attempted to comply with those provisions. If the activity is clearly objectionable (obstructing the entrance way to the building using public access systems), the United States Attorney may wish to ask the FBI to conduct an investigation in addition to the normal procedure of maintaining contact with local officials and keeping informed. The availability and willingness to act of local law enforcement officials, who have the resources and the traditional responsibility to protect people and property, are prime factors to weigh when considering Federal involvement. Another factor to consider is the potential adverse effect upon the conduct of our foreign relations which the activity might have. In making this determination, United States Attorneys may wish to contact the Department of State to discuss the potential impact upon the foreign relations of the United States. The State Department Operations Center, (202) 647-1512 or 1513, can locate the proper officials in the State Department who can give such advice. The obstruction of ingress and egress to and from public buildings and/or the use of public address systems or other sound amplification systems usually violates one or more local law statutes or ordinances. Normally, state and local law enforcement officials will enforce such local laws and Federal officers will act after the activity has terminated or in those isolated instances wherein local officials fail to carry out their responsibilities or cannot because of limited statutory authority, or where Federal action is otherwise deemed necessary.
9-65.900 - Protection of a Member of a Federal Official's Family (18 U.S.C. § 115)
The Organized Crime and Gang Section (OGCS) or Human Rights and Special Prosecutions (HRSP) Section (if international) has supervisory authority over 18 U.S.C. § 115. Consultation with HRSP is required before initiating an investigation if the matter involves international terrorism. The agency which would have investigative jurisdiction over an assault or murder of a particular Federal official will have corresponding investigative jurisdiction over an assault or murder of a member of that Federal official's family. In most cases, this will be the Federal Bureau of Investigation (FBI).
[updated January 2020]