ADDITIONAL STATEMENTS SUBMITTED FOR THE RECORD SUBMITTED BY THE COMMITTEE ON FEDERAL LEGISLATION, THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK (FRED N. FISHMAN, Esq., CHAIRMAN) REPORT ON BILLS TO MAKE ASSASSINATION OF THE PRESIDENT A FEDERAL CRIME A number of bills have been introduced which would make it a Federal crime to assassinate the President and the Vice President of the United States, and in some cases other officers as well. These bills are, of course, a byproduct of the recent assassination of President Kennedy and the events which followed. There is now no statute making it a Federal offense to assassinate the President of the United States. The only statute presently in force which would afford Federal jurisdiction to prosecute would be 18 U.S.C. 372, which requires proof of conspiracy: "CONSPIRACY TO IMPEDE OR INJURE OFFICER "If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder or impede him in the discharge of his official duties, each of such persons shall be fined not more than $5,000 or imprisoned not more than six years, or both." The penalties provided by this section are considerably less than those usually imposed for homicide. The gaps in existing legislation produce some anomalous results. It is, for example, a Federal crime to mail a threat to kill the President (18 U.S.C. 871), but not to kill him, It is a Federal crime if two persons conspire to injure the President on account of his performance of duty (18 U.S.C. 372), but not if one person, acting alone, commits the homicide. The present legislative pattern also makes seemingly arbitrary distinctions among the classes of Federal officers to whom protection is given. For example, although it is a crime under 18 U.S.C. 871 to mail a threat to kill the President. it is not a crime to mail a threat to kill the Vice President, even though under 18 U.S.C. 3056 the Secret Service is authorized to protect not only the President, but also the Vice President, the President-elect and the Vice-President-elect. Four of the pending bills, H.R. 9325, 9332, and 9374, 88th Congress, 1st session (1963), would attempt to correct this situation by adding the President and Vice President to the list of Federal officials enumerated in 18 U.S.C. 1114, which makes it a Federal crime to kill any of a large number of designated officers "while engaged in the performance of his official duties, or on account of the performance of his official duties." One bill, H.R. 9337, 88th Congress, 1st session (1963) would add not only the President and the Vice President but also the head of any executive department to the officials designated in the statute. Penalties for violation of section 1114 range from capital punishment, in the case of murder in the first degree, to a fine of $1,000 and imprisonment of not more than 3 years, in the case of involuntary manslaughter. There does not seem to be any penalty for any attempt to commit homicides covered by section 1114. although 18 U.S.C. section 111 makes it a crime to assault any person designated in section 1114 "while engaged in or on account of the performance of his official duties." The maximum penalties are $5,000 fine and 3 years imprisonment, or $10,000 fine and 10 years imprisonment if a deadly or dangerous weapon is used. 85 There are presently included in section 1114 a wide variety of Federal officials. The categories tend to be those directly concerned with law enforcement, such as judges, U.S. attorneys and their assistants, marshals, and officers guarding property administered by the National Aeronautics and Space Administration. It would, therefore, be a departure from previous pattern to include in section 1114 officials as far removed from direct law enforcement as the President and the Vice President. In any event, prosecutions under section 1114 or section 111 require that the official be engaged in the performance of his official duties at the time of the homicide or assault, or that the crime be committed on account of performance of his official duties. The courts have on occasion adopted a broad approach toward the concept of official duties. Cf. In re Neagle, 135 U.S. 1, 55 (1890) (Supreme Court Justice traveling while on circuit "was as much in the discharge of a duty imposed on him by law as he was while sitting in court and trying causes"). On the other hand, a fairly narrow view has on occasion been taken. See, e.g., Whipp v. United States, 47 F. 2d 496 (6th Cir. 1931) (Federal health official cooperating with State officers in testing animals for tuberculosis held not acting "in the execution" of his duties, since program in which he was engaged called merely for general policy of cooperation). The concept of official action becomes under section 1114 or section 111 an essential element of the crime which must be proved, and one which might well be difficult under some circumstances. A number of bills, S. 2331 and 2332; H.R. 9340, 9346, 9354, 9362, 9366, and 9494, 88th Congress, 1st session (1963), have also been introduced which make it a crime to kill or attempt to kill the President and the Vice President, without regard to the motivation for the crime or whether the President was on duty at the time. Considering the vast importance of these offices, there seems no doubt that protection of the officeholder is within the article I, section 8 power of Congress under the Constitution to make all laws "which shall be necessary and proper for carrying into execution" powers vested in the Federal Government. In this connection, United States v. Barnow, 239 U.S. 74 (1915), is pertinent. The Court upheld a conviction under a statute penalizing falsely impersonating a Federal official even though the defendant had pretended to hold an office which did not exist. The Court stated that Congress could reasonably consider it necessary to prohibit such false pretense "[i]n order that the vast and complicated operations of the Government of the United States shall be carried on successfully and with a minimum of friction and obstruction." Id. at 78. These same considerations apply with even greater force to protection of the chief officers of the Government. Some of these bills which do not require proof of motive or official action would extend coverage beyond the offices of President and Vice President. These extensions include the Chief Justice, S. 2331, 88th Congress, 1st session (1963); the head of an executive department, a Member of Congress, or those elected to those offices, S. 2332, 88th Congress, 1st session (1963); any Member of Congress, including the Resident Commissioner of Pureto Rico, or any officer of the United States appointed by the President by and with the advice and consent of the Senate, H.R. 9346, 9354 and 9366, 88th Congress, 1st session (1963); the Speaker of the House, the President pro tempore of the Senate, or the head of any executive department in line of succession to the Presidency, H.R. 9362, 88th Congress, 1st session (1963); and the President-elect and Vice-President-elect, and those who hold office in line of succession to the Presidency, H.R. 9494, 88th Congress, 1st session (1963). The bills vary in providing penalties for attempts to kill or assaults upon the designated officers. The experience following the assassination of President Kennedy indicates that it would be desirable to have a specific Federal statute covering the killing of the President, or any attempt on his life, whether the crime is committed alone or in conspiracy with others. In general. Federal law enforcement officials might be better equipped to deal with a situation of immediate national concern, and to insure the safety and orderly trial of the defendant, than would be officials of the locality where the offense occurred. It would also seem desirable, considering the nature of the office and its importance to the Nation, that Federal jurisdiction should obtain whether or not the President is engaged in his official duties at the time of the crime, or whether the crime is motivated by official conduct. The damage to the Nation is the same whatever the timing or the motive of the crime, and the importance of any trial for the offense would make it desirable that the issues be as clear cut as possible. Similar reasoning would apply to the office of Vice President of the United States, and to persons elected as President or Vice President but not yet in office. Since the peculiarities of the electoral college system make it technically difficult to determine who are the Presidentelect and Vice-President-elect, appropriate definition of those offices would be desirable. See Presidentiial Transition Act of 1963, Public Law No. 88-277, 88th Congress, 2d session, 78 Stat. 153 (1964) (provision for services and facilities to President-elect and Vice-President-elect, as ascertained by Administrator of General Services, to promote orderly transfer of power). In the case of other officials, however, it does not seem unreasonable to require some connection with official conduct in order to establish Federal jurisdiction of the offense, as is provided in the present section 1114. State processes should be adequate to prosecute offenses which cannot be proved to be service connected Thus, the assassination of a Chief Justice of the United States is punishable under section 1114, if applicable, or under State law if it cannot be shown to have been connected with his duties. There remains the question whether the coverage of section 1114 and section 111 should be broadened to include some of the other officials mentioned in the pending bills, such as Members of Congress and heads of executive departments. At present section 372 (the conspiracy statute) is the only applicable law. There seems no reason why sections 1114 and 111, unlike section 372, should be restricted to certain law enforcement officers, rather than all Federal officials who are killed or attacked while engaged in the performance of their duties or on account of the performance of their duties. It is as much an attack on the Federal Government to assassinate a Member of Congress on account of his vote on a particular bill, which is not covered under present law, as it is to assassinate a judge to avenge a conviction, which is presently covered. CONCLUSION It is, therefore, recommended that 18 U.S.C. sections 111, 372, and 1114 be revised to accomplish the following: 1. The killing or attempted killing of or assault upon the President or the Vice President, or any person elected to those offices, should be a Federal crime, irrespective of whether the crime occurs while the victims are engaged in the performance of their duties or is committed on account of the performance of their duties; 2. The killing or attempted killing of or assault upon any employee of the United States or any person holding any office, trust, or place of confidence under the United States, while engaged in the performance of his official duties or on account of such performance, should be a Federal crime; and 3. Conspiracy to commit any of the foregoing should be a Federal crime. Respectfully submitted. Committee on Federal Legislation, Fred N. Fishman, Chairman, Sidney MAY 5, 1964 STATEMENT OF HON. CHARLES E. CHAMBERLAIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN In the interval of a century and three-quarters which marks the duration of our Federal system of Government, the United States has been served by 35 Presidents. Of this total, at least seven (Jackson, Lincoln, Garfield, McKinley, Theodore Roosevelt, Franklin D. Roosevelt, and Kennedy) suffered attacks on their lives and four of the latter did not survive them. In the light of this ghastly record, any comment on the timeliness of the measure which I have joined in introducing would be in the nature of a gross understatement. At this late date nothing is to be gained by exploring historical sources with a view to discerning the reasons, if any, which hitherto have deterred the Congress from plugging the void which enactment of such a measure would accomplish. It is sufficient to note that by its inaction the Congress has built up a legislative record in the matter of prescribing offenses against Federal personnel that simply defies understanding. On the statute books at present there are to be found reasonably adequate provisions imposing penalties on those who assault, attack, or impede various Federal executive and judicial officers while engaged in the performance of official duties (18 U.S.C. 111, 1111-1112, 1114). Like enactments punishing similar offenses directed at the person of foreign envoys accredited to the United States have been adopted (18 U.S.C. 112). As to the chief officer at the apex of the executive establishment, from whom all the hitherto mentioned rank and file administrative officers receive their final instructions, only one inconsequential enactment has been approved, to wit, a provision making it a crime to mail or forward documents containing threats to take the life of, or to inflict bodily harm upon the President (18 U.S.C. 871). On its face, this inadequate legislative record would appear to leave the Congress wide open to the accusation that it attaches greater significance to subordinate executive officers who carry out the orders of the President than the occupant of the White House who originates these orders, for it is only the former whom the Congress thus far has designed to protect. That, in reality, the Congress is not guilty of this distorted evaluation is best evidenced by the extensive and forthright consideration which it recently has accorded to the problem of Presidential inability. If the latter accurately conveys, as I believe it does, congressional appraisal of the signal importance of the Chief Magistracy, and, above all, of the continuity of service therein, then it is incumbent upon the Congress to delay no longer in eliminating the deficiency such as would be accomplished by approval of the bill which I have joined in introducing. This measure is entirely consonant with the concept of a self-sufficient National Government by which the framers of our Constitution were guided. In drafting that basic document they adopted the precaution of endowing the National Government with a personnel of its own and with all the instrumentalities which it would require to discharge the functions assigned to it. Consistently therewith Congress established a system of Federal courts, and through enactment of a criminal code, it enabled them to assert jurisdiction over the trial and disposition of all offenses embracing violations of Federal laws, including attacks upon, and obstruction of, Federal officers entrusted with enforcing these laws. Manifestly, if the best interests of the National Government are deemed to require that such offenses be triable in Federal courts, then an attack upon the life of an incumbent of the Presidency, including those eligible to succeed to that Office, should be disposed of by a similar provision. The same considerations which contributed to the adoption of existing legislation pertaining to offenses against subordinate Federal executive officers are no less applicable for the disposition of attacks upon incumbents and prospective incumbents of the Presidency, If it is considered inadvisable to permit a multitude of State courts, administering a variety of conflicting criminal statutes imposing penalties equally divergent in severity or the lack thereof, and applying different rules of procedure and standards of evidence, to try individuals accused of harming or attacking or interfering with subordinate Federal officers, it is no less ill advised for the Congress to persist in its refusal to enact legislation such as has been introduced subjecting those charged with like assaults on the President and his prospective successors to trial in Federal courts functioning in conformity wtih uniform standards expressed in relevant criminal enactments. STATEMENT OF HON. DOMINICK V. DANIELS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY I would like to thank you for giving me an opportunity to testify on my bill, H.R. 742, which I introduced on the opening day of the 89th Congress. Mr. Chairman, the events that followed that awful day in Dallas when an assassin's bullet snuffed out the life of our beloved President, John Fitzgerald Kennedy, are too clear in our minds to make it necessary for me to go into detail on the specific happenings. We all remember the capture of the alleged assassin. Lee Harvey Oswald, and the confusion in the police headquarters at Dallas when Oswald was himself shot to death by one Jack Ruby, a restaurateur in Dallas, as millions looked on via national television. It is generally agreed that after President Kennedy's death, the confused situation could have been better handled by the Secret Service or the Federal Bureau of Investigation. Unfortunately, Federal agents had no jurisdiction because killing the President of the United States is not a Federal offense. |