Blanche Argues Comey’s Instagram Post Meant ‘Kill President Trump’; Calls DOJ Independence a ‘Myth’

Attorney General Todd Blanche is doubling down on an unbounded view of presidential power, offering a defense of the Department of Justice’s prosecution of the former FBI director, James Comey, in a new filing to the federal district court at the Eastern District of North Carolina. The filing on Monday comes in response to Mr. Comey’s effort to dismiss the prosecution levied against him. He was charged in April for an Instagram post that showed seashells arranged in an “86 47” formation on a beach. The government contends that the number “86,” which can be slang for “nix” or “get rid of,” signaled a “true threat” on the life of President Trump, the 47th president.Mr. Comey, who captioned the post: “Cool shell formation on my beach walk,” denies that he intended a threat and quickly deleted the photograph. He has argued in court that the case ought to be dismissed as “selective and vindictive” because it was only brought on account of the animus directed toward him by Mr. Trump. While prosecutors are afforded a wide latitude in the decision to bring a case, a showing of vindictiveness —no easy feat for the defendant — results in immediate dismissal.The Justice Department — now under the firm leadership of Attorney General Todd Blanche — states in its filing that Mr. Comey “does not come close to establishing” that the motivation for bringing the case against him was tainted. The department writes that “there is no evidence beyond media speculation that the President directed then-Acting Attorney General Blanche, let alone the actual prosecutorial decisionmaker” to file the two criminal charges stemming from the Instagram post. The government’s filing then goes even further, asserting that even if Mr. Trump had ordered the prosecution, the “Chief Executive directing his subordinates to exercise core Executive functions is a feature, not a bug, of our constitutional system. The purported ‘independence’ of the DOJ that Comey cites is antithetical to the constitutional separation of powers (which lodges the Executive power in the President alone).”The independence of the Justice Department emerged as an issue during and after Mr. Blanche’s confirmation hearing. “There’s a big difference between saying we will always do our job and investigate any case, and act independently of the White House. No, I’m not going to pledge that, and no attorney general should ever pledge that,” he told NBC’s “Meet the Press” after the Senate vote.In its filing, the Justice Department tells the presiding trial judge, Louise W. Flanagan — an appointee of President George W. Bush — that with respect to the independence of the DOJ, “as a matter of historical analysis, it is a myth” because the “Constitution plainly contemplates” a role for the president in prosecutorial decisions. The brief contends that the only metric by which to assess vindictiveness is whether “prosecutors have exercised their power within the constraints of the Due Process and Equal Protection Clauses.”The government also argues that any claim of vindictiveness is belied by the merits of the case because “there’s no serious dispute that an objective viewer of Comey’s post could read it to mean Kill President Trump.” That is an allusion to the Supreme Court’s 2023 ruling in Counterman v. Colorado that for speech to be prosecutable a “reasonable” listener must understand it to amount to a “true threat.” Otherwise, the speaker — or poster — can claim the formidable protection of the First Amendment. The DOJ quotes “Cassell’s Dictionary of Slang” for the possibility that “‘to 86’ also means ‘to kill, to murder, to execute judicially,’ likely referring to the size of a standard grave being 2.5 feet wide by 8 feet long and 6 feet deep.” Merriam Webster, though, reckons that “Eighty-six is slang meaning ‘to throw out,’ ‘to get rid of,’ or ‘to refuse service to.’ It comes from 1930s soda-counter slang meaning that an item was sold out.”The government writes that Mr. Comey “cannot show that — in all cases — indicting a self-proclaimed opponent of the President for threatening the life of that President reeks of malice. Quite the opposite.” The former FBI director, though, points to a raft of social media posts from Mr. Trump calling for his prosecution. The president has called Mr. Comey “guilty as hell.”This is not the first time that Mr. Comey has been charged by the Trump administration. Last year, the DOJ under Attorney General Pam Bondi accused him of lying to Congress in testimony delivered in 2020. The charges were dismissed, though, when Judge Cameron McGown Currie ruled that the acting United States attorney for the Eastern District of Virginia, Lindsey Halligan, was unlawfully appointed. The current case, if it is not dismissed pursuant to Mr. Comey’s request, is set to go to trial next month.

Blanche Argues Comey’s Instagram Post Meant ‘Kill President Trump’; Calls DOJ Independence a ‘Myth’

Blanche Argues Comey’s Instagram Post Meant ‘Kill President Trump’; Calls DOJ Independence a ‘Myth’

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