Me and ChatGPT on Federal Jurisdiction over Assassination Attempts

In columns we’ve posted today and Monday about whether there is federal jurisdiction over Ryan Routh’s alleged attempted murder of former President Trump, I referred to my use of ChatGPT. To reiterate, I believe AI, in general, and ChatGPT, in particular, are invaluable – they are revolutionary advances in research, the development of new ideas, and who knows what else. The amount of research time ChatGPT saves a writer, as compared to more familiar internet search engines, is immense. I am a big fan and a grateful user.

All that said, though, ChatGPT is a research tool, not a take-it-to-the-bank answer to questions — especially, in my experience, legal questions. Since I began using it last year, it has given me a number of bad citations — I never rely on any case or statute it gives me without checking, though this experience is valuable for the corollary: one can’t assume the lack of a relevant case or statutory provision (including a subsection) just because ChatGPT fails to produce it. Not long ago, we learned that former Trump lawyer Michael Cohen and his defense attorney found out about these defects the hard way: They presented a federal judge with a brief based on faux precedents they’d been led to by Google Bard (an AI tool similar to ChatGPT). The judge accepted their explanation that they believed in good faith that the cites were accurate but had negligently failed to check them. Separately, two New York lawyers were sanctioned last year by a federal court over a similar problem: The “cases” they’d been led to by ChatGPT did not exist.

At least in the legal context, you have to double-check everything it tells you and doesn’t tell you.

One of the statutes I missed was §351 of the federal criminal code. As you’re about to see, ChatGPT did alert me to that section; but I then asked it to reproduce the relevant text of the statute. I mistakenly assumed that it would do this accurately — after all, I figured I wasn’t asking it to derive a proposition from data, just to reproduce text from a statute it had already identified. But in doing so, it omitted the critical passage of §351 – the part making it a crime to kill someone who is “a major Presidential or Vice Presidential candidate (as defined in section 3056 of this title)[.]”

Missing this was my fault, not ChatGPT’s. On rereading, I see that, even though I asked it to reproduce the text, it told me it was providing the text “in summary form.” But that caveat flew by me (because what it gave me looked like the statutory text). While I recall eventually skimming the text of §351 on the site of Cornell’s Legal Information Institute, I just missed the reference to “a major Presidential or Vice Presidential candidate.” In mitigation, I can only say that I was in a hurry to catch a plane, that the title of §351 makes no reference to presidential candidates (and suggests the provision has nothing to do with presidents), and that ChatGPT was wrong in what it told me about the statute we were mainly discussing (§1751) so I assumed that it must have been wrong about §351, too. Again, that’s mitigation, not an excuse – I knew this sort of thing could happen.

I am reproducing my ChatGPT exchange. It’s long, but it’s worth reading if this sort of thing interests you. Basically, ChatGPT insisted that major party candidates for the presidency are covered by specified federal statutes criminalizing assassination attempts — a claim defied by the text of those statutes (at least to the limited extent it produced the text of §351, as I just related). It was not only wrong; at times, it cited supposed provisions that do not exist. I’ve italicized statements it made that turned out to be wrong. (For clarity’s sake: the italics below are mine; the bolding is ChatGPT’s.) Here’s the exchange, with very little editing:

Me: Has Congress made it a crime to attempt to kill a candidate for president of the US?

ChatGPT: Yes, Congress has made it a federal crime to attempt to kill a candidate for President of the United States. This is covered under federal law, specifically 18 U.S. Code § 351, which makes it illegal to assassinate, kidnap, or assault any individual who is a candidate for, or who holds the office of, President, Vice President, or a Member of Congress, as well as certain other high-ranking officials. The law provides severe penalties, including life imprisonment or the death penalty, depending on the circumstances of the crime.

In addition, 18 U.S. Code § 1751 provides further protections for the President and Vice President, as well as major presidential candidates. It outlines criminal penalties for attempts to assassinate, kidnap, or cause bodily harm to these individuals.

Thus, an attempt to kill a presidential candidate is a serious federal offense.

Me: Please produce the text of Section 351.

ChatGPT: Here is the text of 18 U.S. Code §351 in summary form:

18 U.S. Code § 351 – Congressional, Cabinet, and Supreme Court assassination, kidnapping, and assault offenses: 

(a) Protection for Members of Congress, cabinet officers, and Supreme Court Justices. This section makes it a federal crime to assassinate, kidnap, or assault Members of Congress, Cabinet officials, and Justices of the Supreme Court, or to attempt or conspire to do so. These crimes are punishable by fines, imprisonment, and in extreme cases, the death penalty.

(b) Penalties for Assassination. If the act results in death, the punishment can include life imprisonment or the death penalty. 

(c) Penalties for Kidnapping or Assault. If the individual is kidnapped or assaulted, penalties include fines and lengthy imprisonment.

(d) Definitions and Scope. This section applies to Members of Congress, specific executive branch officials, and their immediate families, whether the offense is committed domestically or internationally.

Advantages of this law:

• It provides clear and strong legal protections for key government officials, reinforcing the stability and safety of the U.S. government.
• The penalties are severe enough to act as a deterrent, especially for acts like assassination or kidnapping.

Disadvantages of this law:

• While protective, enforcement is reactive in nature — relying on prevention mechanisms (like Secret Service or other security forces) to fully protect candidates and officials.
• The death penalty component can be controversial, especially for those who oppose capital punishment.

[To move things along, I am omitting an exchange about §1113, the federal attempted murder statute, which applies in the special maritime and territorial jurisdiction of the United States.]

Me: Section 879 of the federal criminal code (Title 18) addresses threats to major party candidates for president. Does any federal statute apply to the murder or attempted murder of major party candidates for president?

Yes, federal statutes do apply to the murder or attempted murder of major party candidates for President, primarily through 18 U.S. Code § 1751.

18 U.S. Code § 1751 – Presidential and Presidential Staff Assassination, Kidnapping, and Assault:

This statute specifically addresses crimes against the President, Vice President, and major presidential candidates, including:

1. Subsection (a): It makes it a federal crime to kill, kidnap, or attempt to kill or kidnap the President, Vice President, or any major candidate for either of these offices.
2. Subsection (c): Defines “major Presidential or Vice Presidential candidates” as individuals who are candidates of a major political party(i.e., Democratic or Republican parties) or other individuals who have a significant chance of winning the election, as determined by the U.S. Secret Service.

Penalties:

• Murder: If a major presidential or vice presidential candidate is killed, the penalty is life imprisonment or death.
• Attempted murder: An attempt to kill a major presidential or vice presidential candidate can result in imprisonment for up to life, depending on the severity of the crime and its circumstances.

This law complements 18 U.S. Code § 351, which broadly protects members of Congress and high-ranking government officials, but § 1751 is specific to major candidates for the offices of President and Vice President, adding an additional layer of protection to ensure their security during election campaigns.

Me: Are there similar federal statutes that cover murder or attempted murder of a former president of the US?

ChatGPT: Yes, there are federal statutes that specifically cover the murder or attempted murder of a former President of the United States. This protection falls under 18 U.S. Code § 1751, the same statute that covers crimes against the sitting President, Vice President, and major presidential candidates.

18 U.S. Code § 1751 – Presidential and Presidential Staff Assassination, Kidnapping, and Assault:

• Subsection (a): Makes it a federal crime to kill, attempt to kill, kidnap, or assault not only the sitting President and Vice President but also former Presidents and their families, provided they are under Secret Service protection.
• Subsection (c): Provides definitions and scope for this protection, which includes former Presidents. Their protection by the Secret Service can be continued indefinitely after they leave office, unless the protection is declined.

Penalties:

• Murder: If a former President is murdered, the penalty includes life imprisonment or the death penalty.
• Attempted murder: If there is an attempted murder of a former President, the penalty can include up to life imprisonment, depending on the circumstances of the crime.

Thus, former Presidents are federally protected under the law as long as they are under the protection of the U.S. Secret Service, which is usually granted for life unless they decline it.

Me: The text of §1751 appears to limit its coverage to an apparently successful major party candidate for president — i.e., a candidate who has won the election but has not yet been inaugurated.

ChatGPT: You are correct that 18 U.S. Code § 1751 primarily addresses protections for the President-elect (a major party candidate who has won the election but has not yet been inaugurated), as well as the sitting President and Vice President. However, the statute also covers major party candidates for President and Vice President prior to the election itself, meaning it extends protections beyond just the winning candidate after the election.

In practice, this means that:

• Before the election, the major party candidates (those recognized by the U.S. Secret Service as having a substantial chance of winning the presidency) are protected under § 1751.
• After the election, the President-elect and Vice President-elect receive heightened protection under the same statute until they are inaugurated.

Thus, § 1751 does cover major party candidates both before and after the election, as well as the eventual winners (President-elect and Vice President-elect).

Me: What are the words of the statute that specifically cover major party candidates other than the president-elect?

ChatGPT: The specific wording of 18 U.S. Code § 1751 that covers major party candidates for President and Vice President can be found in subsection (h) of the statute. Here is the relevant portion:

18 U.S. Code § 1751(h):

“As used in this section, the term ‘major Presidential or Vice Presidential candidate’ means a candidate of a major political party who receives widespread public visibility as a candidate in the general election as determined by the Secretary of the Treasury after consultation with the Attorney General.”

This provision defines the term “major Presidential or Vice Presidential candidate” and allows for the inclusion of candidates before the election, as long as they are considered major party candidates who have significant public visibility. The Secret Service, in consultation with the Secretary of the Treasury and the Attorney General, typically makes this determination based on the prominence and likelihood of success of the candidate.

 In summary:

• Subsection (h) extends protection under § 1751 to major party candidates for President and Vice President before the election, not just to the President-elect after the election.

Me: But that’s not what subsection (h) says. It provides: “(h) If Federal investigative or prosecutive jurisdiction is asserted for a violation of this section, such assertion shall suspend the exercise of jurisdiction by a State or local authority, under any applicable State or local law, until Federal action is terminated.”

ChatGPT: You are absolutely correct. I apologize for the confusion. Subsection (h) of 18 U.S. Code § 1751 pertains to the assertion of federal jurisdiction and does not define major party candidates. Thank you for pointing that out.

The correct reference for major party candidates in 18 U.S. Code § 1751 is actually found in subsection (b)(1), not subsection (h). Here is the correct wording from the statute:

18 U.S. Code § 1751(b)(1):

“The term ‘major Presidential or Vice Presidential candidate’ means a candidate of a major political party as determined by the Secretary of the Treasury after consultation with the Attorney General.”

In this subsection, the statute gives the Secretary of the Treasury the authority, after consulting with the Attorney General, to determine who qualifies as a major Presidential or Vice Presidential candidate for purposes of this law. Typically, this includes candidates from the major political parties (Democratic and Republican), and their status is determined based on significant public visibility or other relevant factors.

This section ensures that major candidates for President and Vice President are protected by the statute even before the election, in addition to the President-elect and Vice President-elect after the election.

Me: No, here is subsection (b), and it doesn’t say that at all: “(b) Whoever kidnaps any individual designated in subsection (a) of this section shall be punished (1) by imprisonment for any term of years or for life, or (2) by death or imprisonment for any term of years or for life, if death results to such individual.”

ChatGPT: You’re absolutely right again, and I apologize for the confusion. The correct provision defining major Presidential or Vice Presidential candidates is in subsection (l) of 18 U.S. Code § 1751.

Here is the relevant part:

18 U.S. Code § 1751(l):

 “As used in this section, the term ‘major Presidential or Vice Presidential candidate’ means a candidate of a major political party, as determined by the Secretary of the Treasury after consultation with the Attorney General, who is a candidate for the office of President or Vice President and receives protection from the United States Secret Service under section 3056 of this title.”

This provision defines major Presidential or Vice Presidential candidates as those who are candidates of a major political party and who receive protection from the United States Secret Service. The Secretary of the Treasury, after consulting with the Attorney General, determines which candidates qualify for this designation, typically based on their status as a major party candidate in a general election.

 This clarification ensures that major party candidates for President and Vice President receive the protections of 18 U.S. Code § 1751, not just the President-elect and Vice President-elect after the election.

Thank you for your patience and attention to detail!

Me: Here is the most recent version of the statute, and there is no subsection (l):https://www.law.cornell.edu/uscode/text/18/1751

ChatGPT: (Searched 4 sites) You are correct that 18 U.S. Code § 1751 does not explicitly define “major party candidates” outside of its provisions regarding the President-elect and Vice President-elect. The statute focuses on protecting the President, Vice President, President-elect, Vice President-elect, and their immediate staff. The term “major party candidates” does not appear in the statute itself, but the protections outlined extend to these individuals once they become President-elect or Vice President-elect after the general election, as specified in § 1751(f)​ (LII / Legal Information Institute) ​(LII / Legal Information Institute).

If you’re looking for protections specifically for major Presidential and Vice Presidential candidates before they become President-elect or Vice President-elect, that protection generally falls under 18 U.S. Code § 3056, which governs Secret Service protection. Major party candidates are determined by the Secretary of Homeland Security, typically after consultation with key officials, and these candidates receive Secret Service protection during the campaign based on security threats.

 Thus, while § 1751 doesn’t specifically mention protections for major party candidates before an election, federal law does cover them under broader statutes, such as § 3056.

Me: No, §3056 only gives authorization for the secret service to protect major party candidates and their families. It does not make it a federal crime to attempt to murder a major party candidate. I am looking for a federal statute that makes it a crime to murder or attempt to murder a major party candidate for president.

ChatGPT: You’re correct that 18 U.S. Code § 3056 only authorizes Secret Service protection for major party candidates but does not itself make it a federal crime to attempt to murder or murder a major party candidate.

There is no single statute that explicitly mentions “major party candidates” for President in the same way that it addresses the President-elect or sitting President. [ACM note: §351 explicitly mentions “major Presidential candidates” but not “major party candidates”.] However, 18 U.S. Code § 1751 is broadly interpreted to cover major party candidates for President and Vice President under the following reasoning:

1. Presidential candidate protection: While the term “major party candidate” is not explicitly listed in the text of § 1751, the statute applies to individuals under Secret Service protection, and major party candidates are eligible for Secret Service protection under 18 U.S. Code § 3056. Once a candidate receives such protection, attempts to kill or assault them are likely prosecutable under the broader protective provisions of § 1751, as courts often extend these protections to those deemed by federal authorities to warrant Secret Service protection.
2. General attempt statute: 18 U.S. Code § 1113makes it a federal crime to attempt to commit murder within the special maritime or territorial jurisdiction of the U.S., and could apply to any attempt to kill a major party candidate when combined with the protections outlined by 3056.

In summary, while § 3056 authorizes Secret Service protection, § 1751—though primarily focused on the President, Vice President, and President-elect—is generally considered to apply to individuals under Secret Service protection, including major party candidates. Additionally, the attempt provisions in §1113 would also cover attempts to murder.

If you’re looking for a more explicit or recent legal precedent regarding this, it may involve specific interpretations by the courts or further legislative clarification.

Me: If an attempt to murder a major party candidate occurs in a state, that is not the maritime or territorial jurisdiction of the United States.

ChatGPT: You’re right again — an attempt to murder a major party candidate in a state jurisdiction would not automatically fall under federal statutes that govern special maritime or territorial jurisdiction. The protection for major party candidates does not clearly arise from 18 U.S. Code § 1113 (which applies to maritime and territorial jurisdictions) or 18 U.S. Code § 3056 (which merely authorizes Secret Service protection).

However, the closest applicable statute is still 18 U.S. Code § 1751. While it focuses on protecting the President, Vice President, and President-elect, federal jurisdiction over assassination attempts on major Presidential candidates is inferred when they are under Secret Service protection. Here’s how that works:

1. Secret Service Protection and Federal Jurisdiction: Once a major party candidate for President or Vice President receives Secret Service protection under 3056, the federal government has an interest in their safety. If an assassination attempt or murder occurs, 18 U.S. Code § 1751 can be invoked because it provides penalties for attacks on individuals receiving protection from the Secret Service, regardless of whether the crime occurs in federal or state jurisdiction.
2. Federal Preemption: 18 U.S. Code § 1751(h)states that if federal jurisdiction is asserted for crimes under this section (which includes attempts to kill or kidnap), federal law takes precedence over state law. This means that if a major party candidate is under Secret Service protection, an attempt to kill them can be prosecuted federally, even if the crime takes place in a state jurisdiction​ (LII / Legal Information Institute).

While the statute doesn’t explicitly mention “major party candidates” before the election, in practice, it has been applied to them when they receive Secret Service protection under § 3056. This legal framework fills the gap for federal jurisdiction over murder or attempted murder of major party candidates, even within state jurisdictions.

Me: I’m afraid you’re wrong. There is nothing in the text of Section 1751 that extends its protection to persons receiving Secret Service protection. To the contrary, §1751 expressly limits its application only to major party candidates who have apparently won the election.

ChatGPT: You are correct that 18 U.S. Code § 1751 does not explicitly extend protection to major party candidates prior to them winning the election. The statute is clear in its application to the President, Vice President, President-elect, and Vice President-elect, as well as certain individuals working in the executive offices, but it does not include language that directly covers major party candidates for president before they become President-elect.

Therefore, while § 3056 authorizes the Secret Service to protect major party candidates, it does not create a separate federal crime for murder or attempted murder against such candidates. The only protections for major party candidates would arise under state laws or other federal statutes, such as 18 U.S. Code § 1114, which makes it a crime to kill or attempt to kill federal officers and employees, but this statute also does not directly apply to candidates.

In short, there is no specific federal statute that directly criminalizes the murder or attempted murder of a major party candidate before they win the election and become President-elect, unless other federal jurisdiction can be established based on the specifics of the case.

Me: You earlier said §1751 also covers former presidents. Again, I see nothing in the text that says such a thing. Is it correct that you were erroneously assuming former presidents were covered simply because they have Secret Service protection?

ChatGPT: You are absolutely correct again. 18 U.S. Code §1751 does not explicitly cover former Presidents. The statute’s protections are limited to the President, Vice President, President-elect, Vice President-elect, and certain individuals within the executive branch. There is no language in § 1751 that extends its coverage to former Presidents, even if they are still receiving Secret Service protection.

My earlier assumption was incorrect in stating that former Presidents are protected under § 1751 based solely on their Secret Service protection. The mere fact that a former President receives Secret Service protection under 18 U.S. Code § 3056 does not trigger the specific federal criminal protections found in § 1751.

To summarize:

• § 1751 covers the sitting President, Vice President, President-elect, and Vice President-elect, but not former Presidents.
• The protection for former Presidents, while provided by the Secret Service, does not carry with it the specific federal criminal penalties found in § 1751. Any criminal actions against former Presidents would have to be prosecuted under general criminal statutes, such as those covering assault, murder, or attempted murder.

I appreciate your patience and for pointing this out.

Me: Do you have a case in which a court ruled that Section 1751 is applicable to an assassination attempt on a major party candidate prior to the relevant election?

ChatGPT: I have not been able to locate any court cases where 18 U.S. Code § 1751 was specifically applied to an assassination attempt on a major party candidate for President prior to the relevant election.

The interpretation of § 1751 is generally understood to focus on individuals who have already been elected as President-elect or Vice President-elect. As such, its application to major party candidates before the election is not clearly supported by the text of the statute.

Courts have not expanded § 1751 to apply to assassination attempts on candidates before they become the President-elect, and there does not appear to be any precedent where § 1751 was successfully applied in this context. Therefore, any assassination attempt on a major party candidate prior to the election would likely fall under state criminal law or other federal laws, depending on the circumstances.

If you’re seeking further clarification, consulting legal case databases or legal professionals might provide more insight into how this has been interpreted in specific cases.