Comey appears in court over ’86 47′ allegations that legal experts say would be difficult to prove
Former FBI director James Comey made his first appearance in court Wednesday in a criminal case that legal experts say presents major obstacles for prosecutors and could be a challenge for the US Justice Department to win.
Comey was indicted in North Carolina on Tuesday on charges of threatening US President Donald Trump in connection with a photo he posted on social media last year of seashells with the numbers “86 47.”
The Department of Justice argues that those numbers constituted a threat against Trump, the 47th president.
Comey said he thought the numbers reflected a political message, not a call to violence against the Republican president, and he removed the post as soon as he realized some people were interpreting it that way.
The indictment is the second against Comey, a longtime adversary of Trump dating back to his time as FBI director, last year.
In what appears to be an increase in attacks by US President Donald Trump on his political enemies, former FBI director James Comey has been charged with criminal charges. Nationally, CBC’s Lyndsay Duncombe lays out a timeline of how it got to this point.
Case 1 is dismissed
The first case, on unrelated charges of perjury and obstruction, was dismissed by a judge last year. Now prosecutors pursuing a threat charge face their challenge of proving that Comey intended to speak of an actual threat or at least negligently minimize the statement so that it could be construed as a threat.
The indictment accuses Comey of acting “knowingly and intentionally,” but its sterile language does not support that assertion. Acting US Attorney General Todd Blanche declined to elaborate at a press conference on what evidence the government has.
But the First Amendment’s broad protections for free speech, the US Supreme Court’s background and Comey’s public statements indicating he did not intend to pass on the threat will likely place a long burden on the government.
“Here, ’86’ is ambiguous – it does not threaten violence, and the fact that the FBI director posted this publicly and infamously on a social media site suggests that he did not intend to convey the threat of violence,” John Keller, a former Justice Department official who led the task force to prosecute election workers, wrote of violent messages directed at election workers.
Asked Wednesday if he thought Comey was really referring to his position as a threat, Trump said he considered the word “86” to be a mob name.
“If anyone knows anything about crime, they know 86, it’s a mob word for kill ’em,” he told reporters as he appeared with NASA astronauts in the Oval Office. He also called Comey a “dirty cop.”
No application has been submitted
The case was filed in the eastern district of North Carolina, which is the beach where Comey said he found the shells. He appeared briefly in court Wednesday in federal court in Alexandria, Va., his home state.
Comey did not speak or make a plea during his appearance, which lasted about five minutes. But his legal team has ruled out at least one argument that is expected to be filed, with defense attorney Patrick Fitzgerald saying the defense intends to argue that the prosecution is vindictive and selective and will ask prosecutors to withhold communications that could affect that motion.
US Magistrate Judge William Fitzpatrick also rejected the government’s request to impose conditions on Comey’s release, calling it unnecessary.
As FBI director, Comey oversaw the first months of the investigation into whether Trump’s 2016 election campaign colluded with Russia to avoid consequences. Comey was fired by Trump a few months into his first term as president, and Trump and his supporters are now seeking revenge for the Russia investigation.
Former FBI director James Comey was also indicted Tuesday in connection with a social media post of seashells arranged in the ocean reading the numbers ’86 47.’ The Department of Justice says the post was ‘calling for violence’ against US President Donald Trump.
Law of threats
The US Supreme Court has held that statements are not protected by the First Amendment if they meet the statutory threshold of “actual threat.”
That requires prosecutors to prove, at a minimum, that the defendant ignored the danger that the statement could be construed as a threat of violence. In a 2023 Supreme Court case, the majority said prosecutors must show that “the defendant had some understanding of the threatening nature of his statements.”
Meanwhile, the high court found that hyperbolic political speech is protected. In a 1969 case, the jury ruled that a Vietnam War protester did not make a knowing and deliberate threat against then-president Lyndon B. Johnson, when he remarked, “If they ever make me carry a gun, the first man I want to see in my eyes is LBJ.”
The court noted that the laughter in the crowd when the protester made this statement, among other things, shows that it was not a serious threat of violence.
Regarding the current issue, Merriam-Webster, the dictionary used by the Associated Press, says that 86 is slang for “discard,” “dismiss” or “refuse to serve.” It notes: “Among the later accepted senses there is a logical extension of the earlier ones, with the meaning ‘to kill.’ We do not include this concept, due to its relative status and limited use.”
Comey deleted the post shortly after it was made, writing: “I didn’t realize that some people associate those numbers with violence” and “I am against violence of any kind so I removed the post.”
US President Donald Trump, when asked during a news conference with UK Prime Minister Keir Starmer about ABC’s move to take Jimmy Kimmel off the air, said the host said a ‘terrible thing’ about Charlie Kirk – but attributed the decision to Kimmel’s ‘bad ratings’ and ‘lack of talent.’
John Fishwick, former U.S. attorney for the Western District of Virginia, said the government will likely try to prove that Comey should have known better as a former FBI director.
“I think they’re going to try to say that he’s the head of the FBI, he knows what these words mean and he’s saying them around the world as a threat to the president,” Fiswick said, though he noted that such an argument would be challenging because of Comey’s apparent First Amendment defense.
Comey was voluntarily interviewed by the Secret Service last year, and the fact that he was not charged with making a false statement suggests that prosecutors have no evidence that he lied to agents, Fiswick said.
Jonathan Turley, a law professor at George Washington University, wrote in an opinion piece published Tuesday that “despite being one of Comey’s most vocal critics, the case raises troubling free speech issues. Ultimately, it should be the Constitution, not Comey, that drives the analysis and this impeachment cannot withstand constitutional scrutiny.”
“If it happens,” he added, “it will allow the government to criminalize a lot of political speech in the United States.”
