ALEXANDRIA, Va. (AP) — Former FBI Director James Comey made a court appearance on Wednesday regarding a criminal case that legal experts believe poses considerable challenges for the prosecution. This case is particularly significant for the Justice Department as they face difficulties in securing a conviction.
Comey was indicted on Tuesday in North Carolina on charges related to making threats against President Donald Trump. These charges stem from a photograph he posted on social media last year, which featured seashells arranged to display the numbers “86 47.” The Justice Department argues that these numbers constituted a threat against Trump, who is referred to as the 47th president. However, Comey contends that he believed the numbers represented a political message rather than a violent call and he subsequently deleted the post after realizing some people misinterpreted it.
This indictment marks the second against Comey over the past year. The first, which involved unrelated charges of false statements and obstruction, was dismissed by a judge in November. Now, prosecutors face the daunting task of proving that Comey intended to communicate a genuine threat or, at the very least, was reckless in disregarding the possible interpretation of his statement as a threat.
The indictment claims that Comey acted “knowingly and willfully,” but offers little in the way of supporting evidence for that assertion. Acting Attorney General Todd Blanche has not provided details on the evidence of intent that could be presented in court. The broad protections under the First Amendment for free speech, coupled with Supreme Court precedents, further complicate the prosecution’s case. According to legal expert John Keller, the ambiguity of the number “86” — which does not necessarily denote violence — and Comey's public platform as the FBI Director, who posted the information openly, suggest that he did not intend to evoke a threat.
The case is being prosecuted in the Eastern District of North Carolina, which is where Comey stated he found the shells. He appeared briefly at the federal courthouse in Alexandria, Virginia, where he resides, but did not enter a plea during this initial hearing. Comey’s defense team has indicated that they intend to argue the prosecution is based on vindictive and selective reasoning, urging the government to preserve communications pertinent to this claim. U.S. Magistrate Judge William Fitzpatrick denied the government’s proposal to impose release conditions on Comey, deeming them unnecessary.
As FBI Director, Comey presided over the early stages of an investigation into whether Trump's 2016 campaign colluded with Russia to influence the election's outcome. He was dismissed by Trump a few months into the president's first term, leading to ongoing contention from Trump and his supporters regarding Comey's role in the Russia investigation.
According to legal standards for threats, the Supreme Court stipulates that statements are not protected by the First Amendment if they can be classified as “true threats.” Prosecutors must demonstrate that a defendant recklessly ignored the risk that their statements could be interpreted as promoting violence. A 2023 Supreme Court decision reinforces that prosecutors are required to show the defendant had a subjective understanding of the threatening nature of the statements made.
In a notable 1969 case, the Court determined that a protester's remark about President Lyndon B. Johnson did not constitute a knowing and willful threat, especially considering the audience's reaction of laughter. The current case also raises questions about the interpretation of slang terms; for example, Merriam-Webster defines "86" as slang for throwing out or getting rid of something, with modern connotations suggesting it may refer to ending a life, although that usage remains limited.
Following the uproar from the post, Comey deleted it and clarified that he was not aware people associated those numbers with violence, stating his opposition to violence in any form. President Trump, responding to the situation, expressed that he believes his life was “probably” in danger due to the post, asserting that "86" is a term utilized by the mob to denote killing.
Legal experts like John Fishwick, a former U.S. attorney, speculate that the government will attempt to argue that Comey, due to his former role as FBI director, should have been aware of the implications of his words. Nonetheless, creating a circumstantial case that convincingly ties Comey’s intent to a threat will be challenging, particularly in light of his First Amendment defenses. The fact that Comey was previously interviewed by the Secret Service without subsequent issues suggests a lack of evidence against him.
Legal scholar Jonathan Turley highlighted in a recent opinion piece that the indictment raises significant issues concerning free speech and posited that the Constitution should be the central focus of analysis in this case. He noted that if the indictment were to stand, it could pave the way for the government to criminalize a broad spectrum of political speech across the United States. Blanche defended the case at an unrelated news conference, emphasizing that it ultimately would be up to a jury to decide Comey’s fate in an upcoming trial.
