Comey faces charges over "86 47" post. How far will the case get?

4 days ago 17

Washington — Former FBI Director James Comey is facing a 2nd circular of transgression charges aft a national expansive assemblage voted this week to indict him for allegedly making threats against President Trump.

But ineligible experts expect that the indictment volition beryllium challenged connected aggregate grounds, and they judge it's improbable Comey volition basal proceedings connected charges arising retired of a now-deleted Instagram post, which showed a photograph of seashells arranged to signifier the numbers "86 47."

The indictment alleges the station could reasonably beryllium interpreted arsenic "a superior look of intent to bash harm" to the 47th president of the United States. Mr. Trump said connected Truth Social, "'86' is simply a mob word for 'kill him.'" Merriam-Webster defines "86" arsenic slang meaning "to propulsion out" oregon "get escaped of," and the look is besides commonly utilized successful edifice kitchens.

"If you tin complaint idiosyncratic for arranging seashells successful the soil with an ambiguous message, if that's if that's a threat, if that's transgression speech, past then the First Amendment is successful superior jeopardy," said Perry Carbone, a prof astatine Pace University and erstwhile main of the transgression part for the U.S. Attorney's Office successful Manhattan.

The erstwhile FBI manager appeared successful national court Wednesday. He has not yet entered a plea, though helium declared successful a video posted to Substack, "I'm inactive innocent."

"This lawsuit is going to prove, I think, to beryllium a existent situation for the government," Carissa Byrne Hessick, a instrumentality prof astatine the University of North Carolina who is an adept successful transgression law, told CBS News. "In summation to claims that Comey volition beryllium capable to rise astir selective and vindictive prosecutions, which are claims that helium raised past twelvemonth erstwhile helium was indicted, determination are besides beauteous important ineligible issues associated with the peculiar charges that the authorities decided to bring."

This is the 2nd transgression lawsuit that the Justice Department nether Mr. Trump has brought against Comey. He was first indicted successful September connected 2 transgression counts alleging helium lied to Congress. He sought to person it dismissed on galore grounds, including a assertion that the prosecution was vindictive and selective.

A justice yet did flip retired the case, uncovering that Lindsey Halligan, the prosecutor, was unlawfully appointed to the job. The tribunal ne'er ruled connected Comey's effort to disregard the indictment due to the fact that of vindictive and selective prosecution.

Comey is expected to again reason that helium is being unlawfully targeted for prosecution due to the fact that of his protected code and Mr. Trump's hostility toward him. During the quality Wednesday, Comey's lawyer, Pat Fitzgerald, told the tribunal that the defence plans to record a question to disregard the lawsuit due to the fact that the prosecution is vindictive and selective.

Comey posted the photograph astatine the halfway of the indictment to societal media past May. But helium deleted the representation soon after, penning successful a subsequent post helium assumed the operation "86 47" was conveying a governmental connection and did not recognize immoderate associated the numbers with violence.

A "true threat" oregon protected speech?

The indictment states that Comey "knowingly and willfully" made a menace to termination oregon harm Mr. Trump done his station of the shells connected Instagram.

The Supreme Court has ruled that "true threats" are not protected by the First Amendment, and it acceptable a precocious barroom for what qualifies arsenic a existent threat.

"Speech needs breathing room, and the First Amendment doesn't let the authorities to delegate to code the astir sinister imaginable meaning that it mightiness convey retired of the astir paranoiac speechmaking of its content," Len Niehoff, a instrumentality prof astatine the University of Michigan, told CBS News. "We work code generously and springiness it plentifulness of country to work. Prosecuting code due to the fact that it's ambiguous is precisely the other attack that the First Amendment dictates."

At slightest 2 Supreme Court cases are applicable to Comey's case. The first, Watts v. United States, was decided successful 1969 and progressive a remark Robert Watts made during a treatment astir constabulary brutality years earlier, successful which helium stated, "If they ever marque maine transportation a firearm the archetypal antheral I privation to get successful my sights is LBJ," a notation to then-President Lyndon B. Johnson.

The precocious tribunal ruled that Watts' remark was crude governmental hyperbole and did not represent a existent menace nether the law.

The 2nd case, Counterman v. Colorado, was decided successful 2023. The quality progressive a Colorado antheral who was charged nether authorities instrumentality with making threatening communications to a section vocalist connected Facebook.

The Supreme Court ruled that successful bid to amusement that a existent menace is extracurricular the bounds of the First Amendment, the authorities indispensable show that a suspect had astatine slightest a subjective knowing of his statement's threatening nature. To marque this showing, prosecutors indispensable beryllium a idiosyncratic "consciously disregarded a important risk" that his statements would beryllium viewed arsenic threatening.

Given the facts of Comey's case, experts are skeptical that the Justice Department tin amusement that Comey's code is not covered by the First Amendment.

"This station falls intelligibly wrong the ambit of protected governmental speech. The Supreme Court has made wide that adjacent hyperbolic oregon what immoderate mightiness see intemperate governmental expression, it's protected unless it crosses the enactment into a existent threat, a existent threat," Carbone said. "And it requires successful bid to beryllium a existent menace much than conscionable provocative language. It requires a superior look of an intent to perpetrate unlawful violence, and I don't spot that you person that here."

One different Supreme Court lawsuit from 2015, Elonis v. U.S., lays retired what prosecutors indispensable beryllium nether 1 of the national statutes Comey is charged with violating: transmitting a menace successful interstate commerce. In that case, the precocious tribunal said that it is not capable for the authorities to amusement that a tenable idiosyncratic would presumption a connection arsenic a threat. Instead, the instrumentality requires prosecutors to amusement that a suspect transmits a connection "for the intent of issuing a menace oregon with cognition that the connection volition beryllium viewed arsenic a threat," the Supreme Court found.

Michael Dreeben, who was a subordinate of Comey's defence squad successful the archetypal prosecution and is simply a erstwhile lawman solicitor general, argued the 2015 lawsuit earlier the Supreme Court connected behalf of the government, though the justices ended up ruling for the defendant, Anthony Elonis.

"Without adjacent having to get to a law question, the justice successful this lawsuit could disregard the charges conscionable connected the grounds that what the authorities has said that Comey did doesn't autumn wrong the transgression law," Hessick said. "That's 1 wound astatine the apple. The 2nd wound astatine the pome is adjacent if it falls wrong the law, does it interruption the First Amendment?"

Others person posted "86"

Since Acting Attorney General Todd Blanche announced the indictment earlier this week, online commentators person noted that salient conservatives person besides utilized the word "86" successful notation to politicians.

In 2024, erstwhile GOP Rep. Matt Gaetz of Florida wrote connected X, "we've present 86'd: McCarthy, McDaniel, McConnell" aft erstwhile House GOP Leader Kevin McCarthy, erstwhile Republican National Committee Chair Ronna McDaniel and erstwhile Senate Republican Leader Mitch McConnell announced they were stepping down from their enactment positions.

In 2022, right-wing influencer Jack Posobiec posted "86 46," a notation to then-President Joe Biden.

Asked astir these different comments and if the Justice Department would prosecute charges against others who usage the phrase, Blanche said it would beryllium connected an probe and "all kinds of factors."

But Aaron Terr, manager of nationalist advocacy astatine the Foundation for Individual Rights and Expression, warned that cases similar Comey's tin person a wider chilling effect.

"It sends a connection not conscionable to Comey but to everyone other that they amended ticker what they accidental astir the authorities oregon they could beryllium next," helium told CBS News. "Many radical whitethorn rationally take to self-censor alternatively than hazard the authorities making an illustration retired of them and taking distant their liberty."

Plus, Comey, arsenic a erstwhile FBI director, lawman lawyer wide and national prosecutor, has entree to lawyers who person argued astatine the highest level of the judiciary and much resources to combat the charges — which fewer Americans have.

"Our ideology is based connected the thought that everybody is capable to openly explicit their governmental views and their opinions astir the government," Terr said. "Nobody should person to fearfulness the afloat value of the national authorities coming down connected them conscionable for expressing disapproval of the president. That's antithetical to everything our ideology stands for."

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