Comey, in Bid To Dismiss ‘86 47’ Case, Argues That Blanche Charged Him With the Wrong Crime

The bid late last week by the former FBI director, James Comey, to dismiss the prosecution levied against him by the Trump administration features a new argument — that the Department of Justice charged him with the wrong crime and therefore should be thrown out. That contention appeared in a motion to dismiss the criminal charges against Mr. Comey filed in April. The government alleges that a post by Mr. Comey last year that featured an image of sea shells arranged in an “86 47” formation amounted to a threat on President Trump’s life. Mr. Comey denied threatening Mr. Trump and quickly deleted the post, which was captioned, “Cool shell formation on my beach walk.”The DOJ charged Mr. Comey with two counts of “knowingly making a threat to inflict bodily harm on the president” and “transmitting an interstate communication containing a threat.” He could face a maximum of 10 years in prison if convicted on both counts. Mr. Comey’s arraignment is scheduled for September 30 in North Carolina — if the court refuses to dismiss the case first. Mr. Comey is mounting his motion for dismissal on a multitude of grounds. He contends that the prosecution is “selective and vindictive,” and that the case is precluded by the First Amendment. The Supreme Court ruled in 2023’s Counterman v. Colorado that for speech to be prosecutable it must amount to a “true threat,” meaning that a reasonable recipient of the threat would understand it to be menacing. The Department of Justice counters that “86 47” expresses a clear intent to harm — “86” is slang for “to nix” — the 47th president, Mr. Trump.Now Mr. Comey is mounting a new argument for dismissal. He argues that on “the actual question before the court, the government has little to offer. A call for others to commit violence can only be incitement — which the indictment does not charge.” “The government’s attempt to prosecute an incitement case through a threats indictment violates settled law. The indictment must be dismissed,” The former FBI director argues.Incitement is a different crime under federal law. The relevant statute interdicts anyone who “uses any facility of interstate or foreign commerce” to “commit any act of violence in furtherance of a riot.” To charge that crime, though, the Justice Department would be required to show that Mr. Comey not only intended to express violence toward Mr. Trump, but also to urge others to do the same.Special Counsel Jack Smith faced a similar conundrum in 2023 when he charged Mr. Trump in connection with the aftermath of the presidential election in 2020. Mr. Smith eschewed charging the president with “incitement to insurrection,” and instead indicted him on counts of conspiracy and “deprivation of rights.” The case was dismissed once Mr. Trump won reelection in 2024. The Supreme Court set the legal standard for incitement in 1969 with Brandenberg v. Ohio. The “Brandenburg Test” has two prongs — the speaker must specifically intend to cause immediate illegal behavior and the resulting illegal action must be imminent. The speech must be likely to cause the action in question.If Mr. Comey is correct that he was charged with the wrong crime — meaning that the facts alleged do not meet the legal standard — the remedy is dismissal. In that scenario, however, nothing could stop the government from refiling the charges. A similar dynamic occurred last year when Mr. Comey was charged with lying to Congress days before the statute of limitations expired. The prosecution was dismissed after the acting United States attorney, Lindsey Halligan, was disqualified. The Department of Justice, while it appealed the disqualification — a request for review that is pending — elected not to seek a second indictment as it did for New York’s attorney general, Letitia James, who was also charged by Ms. Halligan. Two subsequent grand juries declined to indict Ms. James.

Comey, in Bid To Dismiss ‘86 47’ Case, Argues That Blanche Charged Him With the Wrong Crime

Comey, in Bid To Dismiss ‘86 47’ Case, Argues That Blanche Charged Him With the Wrong Crime

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