Could James Comey’s Hobby as a Novelist Backfire and Help Convict Him for ‘86 47’ Threat Against Trump?

Usually only facts are admissible as evidence in court — but when it comes to prosecuting the former FBI director James Comey, the Department of Justice is turning to a novel, “FDR Drive,” to bolster its case in a filing docketed this week.“FDR Drive,” a legal thriller published last year, was written by none other than Mr. Comey himself. It is the third in a crime series starring a federal prosecutor — Nora Carleton — following “Central Park West” and “Westport.” Mr. Comey was a federal prosecutor of the Southern District of New York from 1987 to 1992 and the United States attorney there from 2002 to 2003.Now, though, Mr. Comey is on the other side of the docket as a criminal defendant. He was indicted in April by a North Carolina grand jury for threatening President Trump’s life via an Instagram post of seashells arranged on a beach in an “86 47” formation. The DOJ alleges across two criminal counts that “86” amounted to a vow to “kill President Trump,” the 47th man to hold the office.Merriam Webster explains that “86” is slang for “to throw out,” “to get rid of” or “to refuse service to.” The DOJ insists that “There is no serious dispute that an objective viewer of Comey’s post could read it” as an encouragement to harm the president. Mr. Comey, who has moved to dismiss the case as a violation of the First Amendment as well as the paragon of a “vindictive” and unlawful prosecution, insists that he did not know that the shells could suggest violence. He also maintains that even if he did, the image would be only a “hyperbole” and not a “true threat.” Mr. Comey insists that “86 47” is a “well-known political slogan that expresses opposition to the president” and that “No reasonable observer would understand the phrase ’86 47′ to connote violence at all — let alone to threaten that Mr. Comey personally would commit violence against the President.” The DOJ has also solicited the opinion of convicted mafiosos like “Sammy the Bull” Gravano to bolster the position that “86” is a lethal threat. To prove that point, the DOJ points to “FDR Drive.” The novel features a far right podcaster, Samuel “Sam” Buchanan, who sends coded messages to his followers to commit acts of violence. The book explains how “a charismatic leader jacks people up but, through the wonder of the internet, avoids a direct connection to what comes next. He knows an attack will follow his words, but he closes his eyes so he can say he wasn’t part of it.”The DOJ paraphrases that passage in its brief this week, transpose it to the current case to read that “On May 15, 2025, a charismatic leader named James Comey, through the wonder of the internet, posted a coded message to his followers meaning ‘kill’ or ‘get rid of’ (a euphemism for ‘kill’) President Trump.” The legal director of PEN America, Mara Gassmann, declares in a statement that “Citing a novel to save an indictment that is constitutionally dubious is a desperate Hail Mary and should be rejected. She adds that “Extreme caution should be taken any time creative works are used to support criminal charges to protect the free expression rights of us all. Americans can distinguish real life from fiction.” While novelists like to insist on the independent prerogatives of fiction, courts have allowed literature to be entered into evidence by prosecutors to prove intent, state of mind, or knowledge of specific, non-public details of a crime.In 2011 the Michigan Supreme Court weighed whether a novel written by a man charged with molestation could be used as evidence when it contained descriptions of that same crime. The prosecution reasoned that “Just because Sophocles wrote about incest doesn’t mean he would do that, but if Sophocles was on trial for having incest with his mother,” then, say, Oedipus Rex could be admissible at trial. To that the court asked “So if Agatha Christie is charged with murder, the fact that she wrote several first-person stories about murder would be relevant as evidence?” The Wolverine State high bench ultimately ended up affirming the lower courts’ ruling that the fictional work could be admitted into evidence as proof of intent. California, though, has passed a law that requires courts to balance the evidentiary value of creative expression against the “substantial danger of undue prejudice” to defendants.A related issue is the use of rap lyrics as evidence in criminal cases. The district attorney of Fulton County, Fani Willis, used such lyrics in her sprawling racketeering case against the rapper Young Thug and his YSL label, which she alleged was a criminal gang. Ms. Willis saw no reason to give the artistic benefit of the doubt to those who “admit crimes over a beat” and declared “Don’t confess to crimes on rap lyrics if you do not want them used – or at least get out of my county.” Lyrics such as “I shot at his mommy/ now he no longer mention me” were marshaled as evidence. That case, the longest jury trial in Georgia history, ended without a single murder conviction.

Could James Comey’s Hobby as a Novelist Backfire and Help Convict Him for ‘86 47’ Threat Against Trump?

Could James Comey’s Hobby as a Novelist Backfire and Help Convict Him for ‘86 47’ Threat Against Trump?

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