Op-Ed: Is Ted Nugent guilty of threatening Barack Obama?

Posted Apr 19, 2012 by Arthur Weinreb
Although the only certainty in a judicial proceeding is that anything can happen, it is highly unlikely Nugent could be convicted of threatening the president after remarks he made at an NRA Convention.
Musician Ted Nugent playing during a concert
Musician Ted Nugent playing during a concert
Michael Kappel
While doing a radio interview at a recent convention of the National Rifle Association (NRA), the rocker made some highly incendiary comments about Obama. As a result, secret service agents will take some time away from the pleasures of the flesh and interview Nugent about what he said.
Under 18 USC 871, it is a federal offence to threaten the president, the vice-president, or any of their successors (that includes the evil Republican, John Boehner). The section covers threats of kidnapping, doing bodily harm, and death. It is also applicable to a president-elect and vice president-elect.
While it sound like a serious crime, it is only a Class D felony. In a country where handing out jail sentences in the hundreds of years is not unheard of, the maximum punishment for this crime is a fine and up to five years in prison.
At the NRA gathering, Nugent used imagery that included heads being chopped off and coyotes being shot. But the only statement that could possibly lead to a charge under the United States Code is the following: If Barack Obama becomes the president in November again, I will either be dead or in jail by this time next year.
The only logical inference that can be drawn from Nugent's comment that he might be in jail if Obama is reelected because he inflicted some sort of harm to the second term president.
But is that enough to make Nugent guilty of the crime of threatening the president?
The late 1960s was a time when the Vietnam War was raging, the compulsory military draft was in effect in the United States, and protests were held throughout the country. On Aug. 27, 1966, an 18-year-old named Robert Watts was present at a rally held on the grounds of the Washington Monument. He was heard by an army intelligence officer to say the following: They always holler at us to get an education. And now I have received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.
Watts was charged with threatening Johnson and was convicted by a jury whose decision was upheld by the District of Columbia Court of Appeals. On April 21, 1969, the U.S. Supreme Court handed down its decision in Watts v. United States. The country's top court reversed the jury's findings.
Not only did the court find the threat was conditional but they considered the circumstances under which it was made. They held that all Watts did was use a crude and offensive method to engage in debate and to express his political opposition to the president.
Although the government does not have to prove a person has the ability to carry out the threat it must be a "true" threat rather than political hyperbole.
Nugent did nothing more than what Watts did; used crude language to convey his political opinion about the current U.S. president.
If Nugent is guilty of anything, it is of incredibly bad timing. Charging the rocker would provide a diversion from the current scandal involving some Secret Service agents and Colombian prostitutes and Nugent's arrest could be used politically to show the agency takes protecting the president seriously.