For the second time in as many years, former FBI Director James Comey was indicted
last week, this time over a photo posted to his Instagram account. It is the second
indictment brought against Comey by the Department of Justice, and some claim
continues the pattern of the current DOJ seeking prosecution against President Donald
Trump’s political adversaries. The first indictment issued last year–a charge that Comey
lied to Congress over leaks to the press–was dismissed late last year when a federal
judge found that the interim U.S. Attorney for the Eastern District of Virginia had scuttled
Senate approval, and thus was not a legitimate appointee to the court.
This time, the formal accusation stems from a photo of seashells arranged into a pair of
numbers, “86 47”, that Comey allegedly took while on a beachside walk. The charges,
approved by the grand jury in the Eastern District of North Carolina, where the photo
was allegedly taken, include making a threat against the president and transmitting the
threat in interstate commerce, according to court documents.
Comey posted a video response on his Substack account, saying “I’m still innocent. I’m
still not afraid. And I still believe in the independent federal judiciary, so let’s go.”
For some, the case stands for the latest in President Trump’s demands that the DOJ
investigate his foes, including Comey, who Trump sees as a key figure in the perceived
effort to weaponize the justice system against him.
It also comes less than a month after Trump dismissed Attorney General Pam Bondi, in
part because Bondi was not aggressive enough in executing his agenda. Todd Blanche,
Bondi’s top deputy and Trump’s former personal attorney, currently heads the justice
department.
“While this case is unique, and this indictment stands out because of the name of the
defendant, his alleged conduct is the same kind of conduct that we will never tolerate
and that we will always investigate” Blanche said at a press conference last week.
Almost immediately after the picture was posted, Republicans and administration
officials criticized Comey’s post and claimed it amounted to a threat.
In modern slang, “86” is often used when referring to getting rid of or disposing of
something. Others claim it is common mob vernacular for ordering a “hit” on an
individual. The 47, of course, could be construed as a reference to Trump’s current
term.
Comey captioned the photo: “Cool shell formation on my beach walk.”
Comey removed the post the same day and stated he assumed the shells represented
“a political message” but “didn’t realize some folks associate those numbers with
violence.”
“It never occurred to me but I oppose violence of any kind so I took the post down,”
wrote Comey.
Supreme Court precedent has placed a high bar for conviction in threat cases such as
these and they are likely to present an uphill battle for prosecutors because the charges
require proof that Comey “knowingly and willfully” made a threat to “take the life of” the
president.
The pattern of multiple indictments against Comey is one issue his defense team could
raise to the judge if they motion to dismiss the case.
In the earlier case Comey argued for dismissal because he was being selectively
prosecuted. That motion never saw a verdict, as the judge was relieved from the bench
prior to any dismissal hearing.
The current indictment could be challenged on First Amendment grounds alone, and
whether a social media post can amount to a “true threat” is it is a matter the court can
review independently.
Mary Anne Franks, law professor at George Washington University, claims that to prove
a crime, prosecutors need to show there was clear meaning in the statement and that
would also be the clear meaning the recipient would feel. This is “a very ambiguous
statement at best,” said Franks.
Comey’s indictment comes as Blanche has been rigorously bringing cases that the
president has publicly expressed a desire to see prosecuted.
Blanche has made changes to the prosecutors overseeing the investigation into former
CIA director John Brennan. He has also fired four prosecutors who had worked in the
Biden Justice Department on cases that went after abortion protestors and also charged
a former senior official at the National Institute of Allergy and Infectious Diseases with
concealing records during the COVID 19 pandemic.
Blanche said they are also planning to subpoena Fulton County District Attorney Fani
Willis’ bodyguards. Willis brought charges against Trump and others for their efforts in
challenging the results of the 2020 general election.
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