There will be pretrial motions to dismiss on constitutional grounds the ‘seashell’ charges that Comey threatened to kill President Trump.
I don’t believe former FBI Director James Comey will ever be tried on the Trump Justice Department’s inane charges that he threatened to kill the president. For now, in any event, the trial initially scheduled to begin in July has been postponed for three months, to October 21.
Prosecutors did not object to the delay. If I were still a prosecutor, I wouldn’t be anxious to try this case either. Still, the government’s lack of protest is telling. If federal prosecutors believed they were dealing with a person who had actually threatened to assassinate the president of the United States, what do you suppose the odds are that they’d agree to postpone the trial for one day, never mind 14 weeks? What are the chances that Comey would have been released on his own recognizance, as he was after his appearance in court on the charges — a proceeding that took less than ten minutes?
Comey’s attorneys asked for the postponement to allow them more time to prepare what they say will be extensive pretrial motions to dismiss the indictment. The request was granted by Judge Louise Wood Flanagan, a Bush appointee in the Eastern District of North Carolina, who is presiding. Judge Flanagan issued a four-page order, finding that the continuance was supported by the gravity of the charges and the defendant’s need to file motions to dismiss, some of which may be based on pretrial discovery that the government has not yet fully provided. Flanagan noted the Justice Department’s agreement that “the ends of justice” would be served by a delay “for the direct benefit of the defendant.”
As I’ve explained, I do not believe the indictment states a crime because the conduct alleged — specifically, that Comey posted on social media a depiction of seashells arrayed to say, “86 47,” which the Trump DOJ construes as a threat to kill (“86”) the 47th U.S. president (Trump) – does not amount to a true threat under the Supreme Court’s First Amendment jurisprudence. Comey will apparently be arguing that the Constitution bars trying him on the indictment for various reasons. Among these, he is certain to contend, is that the prosecution is selective and vindictive, in violation of equal protection and due process principles.
Selective prosecution claims are extremely uphill for defendants. Nevertheless, Judge Waverly D. Crenshaw Jr., an Obama-appointee in the Middle District of Tennessee, last week dismissed an indictment against Kilmar Abrego Garcia based on that claim. I’ll address that ruling in a separate post.