James Comey Moves To Dismiss Criminal Case Against Him for ‘Lack of a True Threat’ to Trump

The former director of the FBI, James Comey, on Monday filed a motion to dismiss the latest criminal case brought against him by the Department of Justice, offering an early constitutional challenge to a prosecution that could founder before trial. The motion docketed at the Eastern District of North Carolina comes after Mr. Comey was charged in April with two counts of threatening Mr. Trump. His lawyers argue that “Forcing Mr. Comey to stand trial for a statement opposing the President — even if he is ultimately acquitted — would itself be an unconstitutional punishment of free speech.”The case stems from a photograph that Mr. Comey posted to Instagram last year. The images showed seashells arranged on a beach in an “86 47” formation. “86” has been restaurant slang for “to throw out” or “nix” since the 1930s. Merriam-Webster explains that “It did not take long for the word to broaden its use beyond the realm of the soda counter.” The second number is a reference to Mr. Trump’s place in the presidential pantheon.The Justice Department claims in its indictment of Mr. Comey that a “reasonable recipient” of the photograph would interpret the depiction of the shells “as a serious expression of an intent to do harm to President Trump.” Mr. Comey captioned the post on Instagram with “Cool shell formation on my beach walk.” He subsequently deleted it and asserted that he did not intend to threaten Mr. Trump’s life. Mr. Comey’s lawyers write that “86” has “no violent connotation except in the most uncommon usages.”Mr. Comey’s motion contends that “thousands of items featuring this slogan have been sold on the internet and are available to this day, and the slogan was commonly displayed at protests around the country in the months preceding Mr. Comey’s post.” He argues that the Justice Department “now singles out Mr. Comey to prosecute one of the President’s most prominent critics for publishing another person’s statement of political opposition.”Mr. Comey argues that the notion that the post amounted to a lethal threat to Mr. Trump is “contradicted by every possible source of meaning: dictionaries, context, precedent, and common sense.” The government’s case turns in large part on whether Mr. Comey’s post amounts to a “true threat” against Mr. Trump. If the Justice Department cannot clear that bar — and it is a high one for the prosecution — then Mr. Comey’s speech is protected by the First Amendment.“Whatever one thinks of Mr. Comey’s message, the only question here is whether his post is protected speech. Because it is, the indictment must be dismissed,” reads the motion now resting with the presiding trial judge, Louise Flanagan. Mr. Comey calls the existence of the case, even at this inchoate stage, an “unconstitutional punishment of free speech.” The former FBI director roots his motion to dismiss in grand turf — the American Revolution. He writes that “Allowing this prosecution to proceed would sharply depart from our Nation’s history and tradition. Under British law, citizens could be prosecuted and executed for speaking about the death of the King. But the Founders emphatically rejected that practice in the Constitution.”Mr. Comey explains his posting of the image of the shells as a “clever way of expressing political opposition to President Trump,” and maintains that he did not know who arranged them in the first place. The Supreme Court held in Snyder v. Phelps in 2011 that in evaluating whether speech amounts to a threat, it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.The motion notes that “merchandise featuring ‘86 44,’ ‘86 45,’ ‘86 46,’ and ‘86 47’ slogans is widely available at large online retailers like Amazon and has been purchased thousands of times.” That suggests, Mr. Comey’s lawyers argue, that the circumstances dictate against it being a “true threat.” Instead, they contend that it is, at worst, mere “political hyperbole.” The foundational Supreme Court precedent is Watts v. United States from 1969. That case concerned a defendant who was convicted of threatening President Johnson during the Vietnam War by saying “if they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” The high court reversed his conviction because it held that even that did not amount to a “true threat.”In November Mr. Comey succeeded at winning the dismissal of a previous prosecution against him, for lying to Congress in 2020. He successfully argued that the prosecutor in charge of that case, Lindsey Halligan, was unlawfully appointed by Attorney General Pam Bondi. The Justice Department will now respond to his motion moving to dismiss this case. If Mr. Comey does not win dismissal, jury selection is set to begin in September.

James Comey Moves To Dismiss Criminal Case Against Him for ‘Lack of a True Threat’ to Trump

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