Whatever Evidence the DOJ Has Against James Comey, It Cannot Transform ’86 47′ Into a Death Threat
Acting Attorney General Todd Blanche said an 11-month investigation produced “a body of evidence” that supports the federal indictment of former FBI Director James Comey; That indictment charges him with publicly threatening to assassinate President Donald Trump. This is proof, Blanche said in a speech. report on NBC Meet the Press It goes beyond a May 15 Instagram post shared last Sunday at the heart of the case. Photograph Seashells are arranged in the sand to form the message “86 47,” a common expression of opposition to the president.
Blanche declined to specify the nature of this additional evidence, but said it would prove the “intent” needed to convict Comey. This seems pretty suspicious, especially when it comes to the first count. indictmentaccuses Comey of violation 18USC871 “Knowingly and willfully” “threatening to take the life and inflict bodily harm on the President of the United States.”
According to the indictment, Comey did this “by making public posts.”[ing] “A photograph depicting seashells arranged in an ’86 47′ pattern” on the online social media site Instagram; A reasonable recipient, familiar with the circumstances, would interpret it as a serious expression of intent to harm the President of the United States.” The question of how a “reasonable recipient” would understand this message is constitutionally vital under Supreme Court decisions establishing the distinction between “actual threats” and protected speech.
Considering typical slang usage eighty sixIt broadly means “to reject,” “to throw away,” or “to abandon,” and the ubiquity of that specific slogan here appears across a wide range of platforms. t-shirts And bumper stickers If you were so inclined you could order from Amazon right now, strains credulity assuming the statement was reasonably interpreted as a murder threat. That’s not the only problem with this accusation.
To convict Comey under Section 871, prosecutors will have to prove beyond a reasonable doubt that he “knowingly and willfully” threatened violence against the president. This requirement goes beyond subjective intent, which the Supreme Court has said requires the First Amendment to criminalize allegedly threatening speech.
In case of 2023 Counterman / ColoradoThe court said that “a state of mental indifference is sufficient”; This means the government “must show that the defendant knowingly disregarded a significant risk that his communications would be viewed as threats of violence.” Standard under Part 871 more strict: Not only did the defendant “consciously disregard a significant risk” that his statement would be viewed as a threat of violence, but also intended so that it can be understood.
In the 2004 case United States v. FullerFor example, the U.S. Court of Appeals for the 7th Circuit held that a defendant can be convicted of violating Section 871 even if he did not intend to act on his threat. However, he stated that the government must “determine that the communicator knowingly and willfully made a threat” and that this was “intentional”.[ed] “It should be perceived as a serious threat regardless of whether he intends to carry it out.”
The other claim in the Comey indictment is based on the following: 18USC875This makes it a felony to transmit an interstate communication that contains a “threat of harm to the person of another.” Unlike Section 871, this provision does not specify that the defendant must “knowingly and willfully” make the threat. But underneath CountermanProsecutors will still need to prove that Comey “consciously disregarded the serious risk that his communications would be viewed as threats of violence.”
As even Comey’s critics have noted, the Instagram post alone does not come close to establishing the elements of either crime. One report Speaking with CNN’s Jake Tapper on Sunday, Sen. Thom Tillis (R-NC) called Comey a “political hack” and “the biggest disappointment of my Senate career.” Despite his negative opinion of Comey, Tillis thinks the case against him appears to be a “vindictive prosecution” because “86 47” cannot be considered a death threat. “I can’t find any evidence that ’86’ was used as a call to violence,” he said. “There better be more than just the picture. There must be facts and circumstances beyond that to convince me.”
There like that According to Blanche, it is “more than just a painting”. “I’m not allowed to go into the details of what the grand jury heard or found.” in question Open Meet the Press. “But rest assured it wasn’t just an Instagram post that led to someone being charged.”
Blanche acknowledged that the “86 47” slogan “is constantly aired.” “That phrase is used all the time. There are men and women who choose to make threatening statements against President Trump all the time. Not every one of those statements results in charges, of course. There are facts, there are circumstances, there are investigations that need to be done.”
According to Blanche, all uses of “this phrase” qualify as “threatening statements against President Trump”; This means that anyone who wears an “86 47” T-shirt or has “86 47” on their bumper is potentially guilty of violating Section 871. Blanche says “investigations” are necessary to determine whether this accusation is appropriate. But the FBI can’t and doesn’t launch an investigation every time someone uses “that phrase,” which raises the question of why Comey was chosen.
Given President Donald Trump’s frequently expressed antipathy towards Comey and his friends public demand The answer to the question of whether the Ministry of Justice found a crime to be attributed to him seems quite clear. Blanche emphasized that Trump “wants justice” not revenge. But that motivation doesn’t explain why the government decided to pursue the 11-month investigation, which was initially based on nothing more than an Instagram post of what Blanche described as a “constantly used” slogan.
In moving quickly on that point, Blanche said the investigation uncovered “witnesses,” “documents” and “materials” that would be used to “prove intent.” But it is hard to imagine how such evidence could establish that a “reasonable recipient” would view the Instagram post as a death threat; let alone whether Comey intended it to be understood that way, or whether he blatantly ignored the supposedly “significant” risk there might be.
Depends on how the first number is “86 47” reasonably understood. Republicans who advertise their politics by wearing “86 46” t-shirts or “86 46” is displayed stickers Were you threatening to kill the president during the Biden administration? Otherwise, it obviously does not make sense to interpret “86 47” in this way. No evidence gathered by the FBI or federal prosecutors can disprove this point. But that’s what the government has to do to treat Comey’s Instagram post as a “real threat.”
Leaving this seemingly insurmountable obstacle aside, what kind of evidence might the government have that would clarify Comey’s state of mind when he published the seashell photo? Maybe Comey confessed to someone, contrary to what he publicly stated. in question After deleting the photo in response to criticism, he said he always knew “some people associate those numbers with violence.” Perhaps there is “documentation” that shows Comey “knowingly and willfully” threatened to kill the president in the hope that the resulting controversy would negatively impact book sales. But probably not.
during a press conference On the day of the indictment, Blanche portrayed the case against Comey as typical of the Justice Department’s common criminal charges against people who threaten public officials. “Over the past year, this department has charged dozens of cases involving threats against all types of individuals,” he said. “We take each of these seriously.”
If you think that the people posting, wearing, or displaying the “86 47” message are all making “threatening statements against President Trump,” that is simply not true. As Blanche admits, these people are often not investigated, let alone prosecuted. And when people face charges under Section 871 or Section 875(c), cases tend to look quite different from that.
Seeking to back up his claim that the Comey indictment was business as usual at the Justice Department, Blanche cited a recent case in the Northern District of Florida involving Diego M. Villavicencio of Tallahassee. pleaded guilty two counts of sending interstate threats. The evidence included X posts saying Federal Reserve Chairman Jerome Powell “will be shot and killed on September 23rd” and saying “Jerome is next.” Villavicencio also threatened Rep. Eric Swalwell (D-California) in an X post: “I will kill you and your family and you will do nothing about it. Corruption listens to bullets.” He followed this with a direct message to Swalwell saying, “You will be shot and killed on September 24th.” In a 4chan post, Villavicencio announced his plan to head to Mar-a-Lago and “take a few shots at trump and some of the other corrupt plutocrats.”
Blanche also mentioned a case in which “the defendant recently pleaded guilty to threatening former President Biden.” He might be talking about Troy KellyLast August, Crown Point, who lives in New York, “admitted that he threatened to kill President Biden on a social media site in May 2024 and intended for this to be understood as a threat.” Kelly had responded to one of Biden’s posts by warning, “If I catch you, I’ll put a bullet in your head.”
In another recent case, Shawn Monper of Pennsylvania charged violated Section 875(c) last year by making threats on YouTube. “When are we going to stand up and kill these people?” he asked in a video. “This is why Trump needs to die,” he said in another. “I bought some guns and [have] “I’ve been stockpiling ammunition since Trump took office,” he said, later adding, “I’m going to assassinate him myself.”
According to a indictment Shannon Mathre, filed three months ago in the Northern District of Ohio, was similarly clear about her intentions when threatening Vice President J.D. Vance. Mathre allegedly said, “I will find out where he will be and use my M14 automatic weapon and kill him,” prompting a charge under Section 871, which covers threats against the president as well as the vice president.
Comey, by contrast, posted a photo of seashells arranged in an “86 47” pattern; the phrase, Blanche acknowledges, is widely used by Trump critics who never faced federal charges. “In a typical situation” former federal prosecutor Alexis Loeb said Top“You won’t see threats that are easily open to non-violent comments.”
It is clear that one of these cases is not like the others. But Blanche insists Comey’s Instagram post is legally indistinguishable from open threats from defendants like Villavicencio and Kelly.
Although Comey’s indictment is “unique” and “stands out because of the defendant’s name,” Blanche said “His alleged behavior is the same type of behavior that we will never tolerate, will always investigate and regularly prosecute,” he told reporters last week. In fact, the case against Comey “stands out” not only because the defendant is a celebrity, but also because the alleged death threat was actually political speech protected by the First Amendment.
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