Back in May, I explained that the Justice Department’s indictment of President Trump’s nemesis, former FBI Director James Comey, would not withstand constitutional scrutiny. This is because “86 47” — the numbers into which the seashells Comey depicted and posted on Instagram were arrayed — was not a true threat to assassinate the president, in light not only of common sense but also the Supreme Court’s jurisprudence on actionable threats and protected speech under the First Amendment
On Monday, as expected, Comey’s lawyers filed a pretrial motion in the federal District Court for the Eastern District of North Carolina, asking Judge Louise Flanagan (a Bush-43 appointee) to dismiss the indictment on precisely those First Amendment grounds.
Comey intends to file several other motions to ask that the criminal case be dismissed as a patently vindictive prosecution. Those would be steeper hills to climb for the defense — though not impossible, since the record of vindictiveness is extraordinary. Nevertheless, the simplest reason why the case should be thrown out is that the indictment fails to state a crime, Comey’s conduct having been wholly permissible political speech as a matter of law and, in any event, not a crime as a matter of fact.
Judge Flanagan has set an October 21 trial date. I’d be very surprised if there is a trial.