Topline
Former FBI Director James Comey asked a federal court Monday to throw out the Trump administration’s criminal charges against him, alleging he’s being unfairly punished for protected speech and his “86 47” photograph wasn’t a “true threat” against President Donald Trump.
Former FBI Director James Comey is interviewed at 92NY on May 30, 2023 in New York City.
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Key Facts
Comey filed a motion Monday to dismiss the criminal charges against him, after the Justice Department indicted the longtime Trump critic for posting a photo on Instagram of seashells arranged to read “86 47,” a phrase prosecutors interpreted to be a “true threat” against the president’s life.
Comey’s lawyers disputed the phrase constitutes a threat, arguing “86” means to “‘get rid of’ or ‘eject’ and has no violent connotation except in the most uncommon usages,” and should at most be thought of as “mere political hyperbole” that’s protected under the First Amendment.
His Instagram post—which Comey deleted and then apologized for—also “contains no serious expression that Mr. Comey himself intended to commit violence against the President,” his attorneys argued.
Prosecutors are unfairly “singl[ing] out” Comey because he’s an outspoken critic of the president, his attorneys alleged, noting the phrase “86 47” is a “well-known political slogan that expresses opposition to the President” and has been used widely on merchandise and at protests without the government taking action.
The Trump administration is trying to chill Comey’s political speech against the president, the former FBI chief’s lawyers argued, claiming that even allowing the case to go to trial “would itself be an unconstitutional punishment of free speech” and “would invite future prosecutions by the Executive Branch against perceived political enemies for their opposition to the President.”
The DOJ has not yet responded to a request for comment.
Crucial Quote
“The indictment here has no precedent. No authority holds that broadcasting to the world another person’s expression of a well-known political slogan with (at most) only an attenuated, obscure, and implausible suggestion of a call to violence can constitute a true threat,” Comey’s attorneys wrote in their filing. “This Court should not be the first to endorse that radical theory.”
What to Watch for
It’s unclear whether the charges against Comey will be allowed to proceed, but an answer on the issue won’t come until at least September. Under the schedule set by the court, the Trump administration has until mid-August to file its response to Comey’s brief, and the former FBI chief will respond to that filing by September. It’s likely after that point that the court will decide whether or not the charges should be thrown out. If the charges are allowed to proceed, Comey will be formally arraigned on Sept. 30, and the trial would start Oct. 21.
Surprising Fact
Comey’s lawyers used Trump’s own rhetoric Monday to help explain why using the phrase “86 47” was permissible speech, noting in their filing the First Amendment allows “using violent terms to criticize political opponents.” The attorneys pointed to posts Trump has made with violent connotations that’s still permitted under the First Amendment, such as the president claiming a video that Democratic lawmakers put out criticizing the Department of Defense’s policies constituted “SEDITIOUS BEHAVIOR, punishable by DEATH!” He also shared another post saying, “HANG THEM.” (Trump later clarified to Fox News he was “not threatening death, but I think they’re in serious trouble.”)
What Charges Does Comey Face?
Comey has been charged with one count of making a threat to kill or harm the president, and one count of transmitting in interstate commerce a threat to kill or injure another person. Each count is punishable by up to five years in prison, as well as a fine.