Prosecutors simply don’t have a case.
Prosecutors simply don’t have a case.
O n the Sunday news shows last week, Acting Attorney General Todd Blanche attempted the impossible: an explanation, besides politicized prosecution, for why the Trump Justice Department has charged only his boss’s nemesis, James Comey, with a criminally actionable threat for using the term “86” in connection with a president. Last year, Comey posted on Instagram a photograph of seashells on a North Carolina beach, arrayed to say, “86 47.”
Nobody doubts that “47” refers to Trump, the 47th president of these United States. The question is what “86” means.
On that score, Blanche is flailing. The term, as we shall see, is ambiguous and most commonly understood to be non-violent. Countless others continue to go un-charged for the same conduct, including MAGA fave Jack Posobiec, who posted “86 46” in a 2022 post, referring to then–President Joe Biden.
The New York Times reports on Blanche’s Meet the Press interview:
“Of course the seashells are part of that case,” said Mr. Blanche, who acknowledged that proving Mr. Comey’s intent would be crucial to his prosecution. “You prove intent with witnesses; you prove intent with documents,” he said, adding that there was “a body of evidence” that led to Mr. Comey’s indictment.
The acting AG’s analysis is specious. As a matter of law, Comey’s communication was not an actionable threat. His intent is therefore beside the point.
Every federal crime has at least two essential elements that must be proved beyond a reasonable doubt to sustain a conviction: the action component (the actus reus) and mental component (variously referred to as state of mind, mens rea, or scienter). When a person is charged with a criminal act, there is no need to go through the mind-reading exercise of analyzing intent unless the government proves that the act charged truly violates the relevant statute. Comey’s seashell array cannot establish such an act.
To commit the offenses charged in the indictment, Comey would have to have issued a communication that rose to the level of (1) a “threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States” (count one, which charges a violation of Section 871 of the federal penal code), or (2) a “threat to kidnap any person or [a] threat to injure the person of another” (count two, charged under Section 875(c)). Whatever “86 47” may be, it is not an unmistakable threat to kill, kidnap, or injure the president.
Over the past two weeks, commentators justifiably outraged by this latest lawfare episode have fulminated that Comey obviously did not intend to threaten Trump with bodily harm. They stress Comey’s removal of the post, his claim that he was unaware that “86” might be taken by some people to connote a call for violence, and his clear statement of opposition to political violence. Such evidence would, indeed, be helpful to Comey if the case went to trial — although prosecutors would point out that it occurred after the charged act (i.e., after the supposed crime was already complete).
To my mind, though, that’s all beside the point. Sure, Comey plainly did not intend to threaten bodily harm. More fundamentally, though, even if Comey’s state of mind had been sinister, he’d still be innocent because the seashell array was not an actionable threat.
Put another way, the reason Jack Posobiec has not been charged with threatening to kill President Biden is that, in posting “86 46,” he didn’t threaten to kill President Biden.
True, Blanche was unable to explain the Trump DOJ’s double standard, but that’s a side issue. We usually worry about double standards — which give rise to a claim of selective prosecution — when two people commit the same kind of criminal conduct but, for improper reasons (e.g., political favoritism or retribution), the government charges one but not the other. Here, the problem is not that Posobiec was not charged; it is that Comey has been indicted for something that isn’t a crime. That’s always improper.
In Chaplinsky v. New Hampshire (1942), the Supreme Court identified the well-established categories of speech that are not protected by the First Amendment (fighting words, slander, obscenity, incitement, etc.). Comey’s case falls into the category of what the Court, in more recent years, has described as true threats. In Counterman v. Colorado (2023), the justices explained: “True threats are serious expressions conveying that a speaker means to commit an act of unlawful violence” (quotations omitted). The Court elaborated:
The “true” in that term distinguishes what is at issue from jests, “hyperbole,” or other statements that when taken in context do not convey a real possibility that violence will follow (say, “I am going to kill you for showing up late”).
Only true threats fall outside First Amendment protection. And because the core of that protection is political speech — very much including pointed and even obnoxious and objectionable rhetoric against a sitting president — communications have to surmount a high bar of clarity and seriousness to be deemed true threats.
This is the lesson of the Court’s 1969 decision in Watts v. United States. There, the defendant made a statement that, manifestly, was more concretely threatening than anything Comey can be accused of. At a political rally in 1966, after someone suggested that young people should get more education before expressing their opinions, a military intelligence officer heard Watts say, in reference to President Lyndon B. Johnson:
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. [Emphasis added.]
In reversing the defendant’s conviction, the Court explained that, regardless of what the required mental state for proving the threat offense might be,
the statute initially requires the Government to prove a true “threat.” We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. [Emphasis added.]
The justices elaborated that the question whether a statement was truly threatening had to be analyzed
against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. [Quoting from the Court’s landmark libel case, New York Times v. Sullivan (1964).]
With that as our jurisprudential baseline, it is worth revisiting the Counterman case mentioned above.
Because it’s the latest relevant precedent, Counterman has been discussed extensively since Comey’s indictment; much of the commentary, I think, has been confused, leading to undue emphasis on Comey’s state of mind. That’s important because, if the only question is whether Comey intended to threaten the president with bodily harm, then the indictment would almost certainly have to result in a trial before Judge Louise Flanagan (the Bush-43 appointee to the Eastern District of North Carolina, who is assigned to preside). That is, Comey can probably avoid a trial only if Judge Flanagan concludes that the indictment fails to charge an actionable threat. If the government can prove an actionable threat, the relevant law instructs that his state of mind is a jury question — no matter how confident I or anyone else may be that criminal intent cannot be proved beyond a reasonable doubt.
Furthermore, if “86 47” could be a true threat, then it would be nigh impossible for Comey to get the case thrown out on selective prosecution grounds, despite mountainous evidence that he has been abusively singled out by Trump prosecutors. The Justice Department has broad discretion to prosecute threats to the president and has done so hundreds of times since the Reagan era.
That said, the case must be thrown out pretrial because “86 47” is not a true threat. The Court’s opinions in Counterman show why.
It was beyond dispute that Billy Counterman had not merely threatened but also stalked his victim. The case presented no political-speech concerns: This was straight up intimidation of a private person. The Court did not have to establish that a true threat had occurred because, on the facts, that was a given. The question was whether, even in true threat cases, the government must also prove that the defendant subjectively understood the threatening nature of his conduct.
Even in disagreeing on the state-of-mind analysis, the nine justices were of one mind that even harsh rhetoric invoking violence is not a true threat if it doesn’t clearly and objectively convey a threat. While acting AG Blanche claims to have a “body of evidence” about Comey’s intent, the Court’s majority emphasized that “the threatening aspect of the message” does not hinge on “whether speaker is aware of, and intends to convey” a threat; the question is not “the mental state of the person” but rather “what the statement conveys” — which must be a “serious expression” that the defendant “means to ‘commit an act of unlawful violence’” (quoting the Court’s 2003 decision in Virginia v. Black).
Even if there is a true threat, the majority justices concluded that prosecutors must prove criminal intent — in the majority’s view, the standard was recklessness (i.e., that the defendant consciously disregarded a substantial and unjustifiable risk that his conduct would cause harm to another). Interestingly for present purposes, though, is the dissenting opinion of Justice Amy Coney Barrett (joined by Justice Clarence Thomas). She reasoned, correctly in my view, that there should be no need to prove a mental state; what puts threatening speech outside the carapace of the First Amendment is that, on its face, the speech would provoke a reasonable person to fear violence.
The free-speech test, Justice Barrett stressed, is “objective.” Yes, a speaker who does not intend to threaten someone is less apt to make a statement that could reasonably be taken that way, “but the Constitution ultimately declines to protect true threats for objective reasons, not subjective ones.” This is why “only a very narrow class of statements satisfies the definition of a true threat.” Speech “that is merely offensive, poorly chosen, or unpopular does not qualify” (internal quotations omitted). Instead, “the statement must be deemed threatening to a reasonable listener who is familiar with the entire factual context.
Here, as Eugene Volokh points out, that context would include the fact that the most common dictionary definition of “eighty-six” has nothing to do with violence; it involves ejecting or debarring a person from premises, rejecting or abandoning a person — not killing him. Ergo, Volokh concludes:
Nothing in Comey’s statement can be reasonably understood as conveying that he means to kill Trump. Rather, its reasonably understood meaning is that Comey wants Trump removed, for instance through impeachment or (as with President Nixon) resignation under threat of impeachment.
This conclusion flows naturally from the wide berth the First Amendment gives even to violent rhetoric when it is uttered in the political context. That is best elucidated by the image of shooting President Johnson conjured by the speech in Watts; and it is why, as Justice Barrett explains in Counterman, the crime of incitement, which “often arises in the political arena,” requires a showing of specific intent to commit violence even when it is undeniable that the words uttered advocate violence.
But you never get to the question of intent unless there is a true threat; “86 47,” an expression easily and most commonly understood as an opinion that Trump is unfit to be president, not a call for his murder, is not close to being a true threat. Not in a country that venerates free political speech.
Two last points.
First, commentators defending the indictment claim that because “86” is a fuzzy term that could be taken as a violent threat in, say, a mafia context, the question whether Comey meant it in such a way is for the trial jury to decide. Wrong. As Volokh elucidates, courts reviewing speech cases do not “defer[] to the factfinder’s interpretation of ambiguous language.” We’re talking here about constitutional protection, not a more quotidian defense objection that the evidence is too weak to warrant a trial. The First Amendment does not only safeguard Americans from being convicted for their political speech; it bars the government from taking any punitive action over such speech (just like Fifth Amendment double-jeopardy forbids not just a second conviction but a second trial for a single offense). If the speech charged in the indictment is not patently threatening, then it is protected by the First Amendment and cannot be deemed a true threat; and in the political context, such words often retain First Amendment protection even if they convey an unambiguously violent meaning.
Second, Blanche claims that the seashell array is just a portion of the government’s proof, and intimates that he has scads of evidence — undisclosed, of course — about Comey’s allegedly violent intent. But the indictment only refers to the seashell array; that’s the supposed threat crime. In nearly 20 years as a federal prosecutor, I wrote or approved hundreds of indictments. When prosecutors have boffo evidence, they find ways to allude to it in the written charges so that it will be highlighted when the jury deliberates. There is no hint of that in the indictment against Comey.
Perhaps that’s because there is no such evidence; after all, the publicly known indications are that Comey opposes unlawful violence, and political violence specifically. Maybe, though, it’s because Blanche knows Comey’s state of mind is a second-order concern: If prosecutors don’t have a true threat, they don’t have a case, no matter what Comey intended by the seashell array. And “86 47” is not a true threat.