Comey appears in court in Trump threat case that's likely to pose a challenge for Justice Department

ALEXANDRIA, Va. (AP) — Former FBI Director James Comey appeared successful tribunal connected Wednesday, kick-starting a transgression lawsuit against him that ineligible experts accidental presents important hurdles for the prosecution and volition apt beryllium a situation for the Justice Department to win.

Comey, who didn't participate a plea, was indicted successful North Carolina connected Tuesday connected charges of making threats against President Donald Trump related to a photograph helium posted connected societal media past twelvemonth of seashells arranged successful the numbers “86 47.” The Justice Department contends those numbers amounted to a menace against Trump, the 47th president. Comey has said helium assumed the numbers reflected a governmental message, not a telephone to unit against the Republican president, and removed the station arsenic soon arsenic helium saw immoderate radical were interpreting it that way.

The indictment is the 2nd against Comey, a longtime adversary of Trump dating backmost to his clip arsenic FBI director, implicit the past year. The archetypal one, connected unrelated false-statement and obstruction charges, was tossed retired by a justice past year. Now prosecutors pursuing the threats lawsuit look their ain situation of proving that Comey intended to pass a existent menace oregon astatine slightest recklessly discounted the anticipation that the connection could beryllium understood arsenic a threat.

The indictment accuses Comey of acting “knowingly and willfully,” but its sparse connection offers nary enactment for that assertion. Acting Attorney General Todd Blanche declined to elaborate astatine a quality league connected what grounds of intent the authorities has. But wide First Amendment protections for escaped speech, Supreme Court precedent and Comey's nationalist statements indicating that helium did not mean to convey a menace volition apt enforce a gangly load for the government.

“Here, ‘86’ is ambiguous — it doesn’t needfully endanger unit and the information that it was the FBI Director posting this openly and notoriously connected a nationalist societal media tract suggests that helium didn’t mean to convey a menace of violence,” John Keller, a erstwhile elder Justice Department authoritative who led a task unit to prosecute convulsive threats against predetermination workers, wrote successful a substance message.

The lawsuit was charged successful the Eastern District of North Carolina, the determination of the formation wherever Comey has said helium recovered the shells. He is acceptable to marque his archetypal tribunal quality Wednesday astatine the national courthouse successful Alexandria, Virginia, the authorities wherever helium lives.

What the instrumentality says connected threats

The Supreme Court has held that statements are not protected by the First Amendment if they conscionable the ineligible threshold of a “true threat.”

That requires prosecutors to prove, astatine a minimum, that a suspect recklessly disregarded the hazard that a connection could beryllium perceived arsenic threatening violence. In a 2023 Supreme Court case, the bulk held that prosecutors person to amusement that the “defendant had immoderate subjective knowing of the threatening quality of his statements.”

Meanwhile, the Supreme Court has recovered that hyperbolic governmental code is protected. In a 1969 case, the justices held that a Vietnam War protester did not marque a knowing and willful menace against the president erstwhile helium remarked that “If they ever marque maine transportation a firearm the archetypal antheral I privation to get successful my sights is L.B.J,” referring to President Lyndon B. Johnson. The tribunal noted that laughter successful the assemblage erstwhile the protester made the statement, among different things, showed it wasn’t a superior menace of violence.

Regarding the existent case, Merriam-Webster, the dictionary utilized by The Associated Press, says 86 is slang meaning “to propulsion out,” “to get escaped of” oregon “to garbage work to.” It notes: “Among the astir caller senses adopted is simply a logical hold of the erstwhile ones, with the meaning of ‘to kill.’ We bash not participate this sense, owed to its comparative recency and sparseness of use.”

Comey deleted the station soon aft it was made, writing: “I didn’t recognize immoderate folks subordinate those numbers with violence” and “I reason unit of immoderate benignant truthful I took the station down.”

What the authorities volition effort to prove

John Fishwick, a erstwhile U.S. lawyer successful the Western District of Virginia, said the authorities volition apt effort to beryllium that Comey should person known amended arsenic a erstwhile FBI director.

“I deliberation they're going to effort to circumstantially accidental that you were caput of the FBI, you knew what these presumption meant and you said them retired to the full satellite arsenic a menace to the president,” Fishwick said, though helium noted that specified an statement would beryllium challenging successful airy of Comey's evident First Amendment defenses.

Comey was voluntarily interviewed by the Secret Service past year, and the information that helium was not charged with making a mendacious connection suggests that prosecutors bash not person grounds that helium lied to agents Fishwick said.

Jonathan Turley, a George Washington University instrumentality professor, wrote successful an sentiment portion published Tuesday that “despite being 1 of Comey’s longest critics, the indictment raises troubling escaped code issues. In the end, it indispensable beryllium the Constitution, not Comey, that drives the investigation and this indictment is improbable to withstand law scrutiny.”

“If it did,” helium added, “it would let the authorities to criminalize a immense swath of governmental code successful the United States.”

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Kunzelman reported from Alexandria, Va.

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