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AIPROPX ReportForbes · 2h ago
James Comey Argues ‘86 47’ Charges Not A ‘True Threat,’ Wants Them Thrown Out
Topline Former FBI Director James Comey asked a federal court Monday to throw out the Trump administration’s criminal charges against him, alleging he’s being unfairly punished for protected speech and his “86 47” photograph wasn’t a “true threat” against President Donald Trump.
Comey filed a motion Monday to dismiss the criminal charges against him, after the Justice Department indicted the longtime Trump critic for posting a photo on Instagram of seashells arranged to read “86 47,” a phrase prosecutors interpreted to be a “true threat” against the president’s life.
Comey’s lawyers disputed the phrase constitutes a threat, arguing “86” means to “‘get rid of’ or ‘eject’ and has no violent connotation except in the most uncommon usages,” and should at most be thought of as “mere political hyperbole” that’s protected under the First Amendment.
His Instagram post—which Comey deleted and then apologized for—also “contains no serious expression that Mr. Comey himself intended to commit violence against the President,” his attorneys argued.
Prosecutors are unfairly “singl[ing] out” Comey because he’s an outspoken critic of the president, his attorneys alleged, noting the phrase “86 47” is a “well-known political slogan that expresses opposition to the President” and has been used widely on merchandise and at protests without the government taking action.
The Trump administration is trying to chill Comey’s political speech against the president, the former FBI chief’s lawyers argued, claiming that even allowing the case to go to trial “would itself be an unconstitutional punishment of free speech” and “would invite future prosecutions by the Executive Branch against perceived political enemies for their opposition to the President.”
The DOJ said Monday a "grand jury indicted Comey, and he’ll have his day in court like any other defendant," adding, "It would be unfair to the prosecution teams and to Comey himself to reveal any further details."
“The indictment here has no precedent. No authority holds that broadcasting to the world another person’s expression of a well-known political slogan with (at most) only an attenuated, obscure, and implausible suggestion of a call to violence can constitute a true threat,” Comey’s attorneys wrote in their filing. “This Court should not be the first to endorse that radical theory.”
It’s unclear whether the charges against Comey will be allowed to proceed, but an answer on the issue won’t come until at least September. Under the schedule set by the court, the Trump administration has until mid-August to file its response to Comey’s brief, and the former FBI chief will respond to that filing by September. It’s likely after that point that the court will decide whether or not the charges should be thrown out. If the charges are allowed to proceed, Comey will be formally arraigned on Sept. 30, and the trial would start Oct. 21.
In his initial post with the photo of seashells, Comey simply captioned the post, “Cool shell formation on my beach walk.” After taking down the post, Comey posted a message on Instagram saying he “assumed” the seashells “were a political message,” but he “didn’t realize some folks associated those numbers with violence.” That “never occurred to me but I oppose violence of any kind so I took the post down,” Comey wrote.
Comey’s lawyers used Trump’s own rhetoric Monday to help explain why using the phrase “86 47” was permissible speech, noting in their filing the First Amendment allows “using violent terms to criticize political opponents.” The attorneys pointed to posts Trump has made with violent connotations that’s still permitted under the First Amendment, such as the president claiming a video that Democratic lawmakers put out criticizing the Department of Defense’s policies constituted “SEDITIOUS BEHAVIOR, punishable by DEATH!” He also shared another post saying, “HANG THEM.” (Trump later clarified to Fox News he was “not threatening death, but I think they’re in serious trouble.”)
Comey has been charged with one count of making a threat to kill or harm the president, and one count of transmitting in interstate commerce a threat to kill or injure another person. Each count is punishable by up to five years in prison, as well as a fine.
Comey was the FBI director when Trump first took office in 2017, but the president controversially fired him only months later. Comey alleged the president asked him for “loyalty” during a private dinner while he was still at the agency, and his dismissal was widely viewed by Trump critics as an effort to quell the FBI’s ongoing investigation into potential ties between Russia and the Trump campaign. The ex-FBI director has become an outspoken Trump critic since leaving the DOJ, and the “86 47” charges mark the second time he’s been indicted during the president’s second term. Comey was previously indicted for alleged false statements to Congress in September, but the charges were dismissed months later, as a judge found U.S. Attorney Lindsey Halligan, who brought the charges, was improperly appointed. Comey has blasted both sets of charges against him as being politically motivated and denied any wrongdoing, saying after his second indictment in April, “I am still innocent. I am still not afraid, and I still believe in the independent federal judiciary, so let’s go.”
Justice Department Indicts Former FBI Director James Comey Over ‘86 47’ Instagram Post (Forbes)
Trump’s Cases Against James Comey And Letitia James Dismissed (Forbes)
‘Assassination . . . Loud And Clear’: Trump Says Comey Knew What ‘86 47’ Post Meant, Despite Former FBI Director’s Denial (Forbes)
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