By now, it’s probably hard to find anyone in the United States with a political pulse who hasn’t heard about last week’s indictment of former FBI director James Comey. It asserts that Comey threatened “to take the life of, and to inflict bodily harm upon” Donald Trump by posting “a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out ‘86 47.’”
Trump, the nation’s 47th president, contends that “86” is a “mob term for kill him.” More benignly, restaurant workers use it to refer to running out of an item or getting rid of a dish from a menu. There’s even a restaurant in Palm Desert, California, called Kitchen 86. As professor Mary Anne Franks remarked, the “86 47” shell arrangement is “a very ambiguous statement at best.”
True threats of violence aren’t constitutionally protected. The US Supreme Court defines them as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” The Court has explained that “[t]he ‘true’ in [true threats] 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.”
Numerous constitutional law and First Amendment experts don’t believe Comey’s seashells post is a true threat; instead, it’s much more akin to protected “political hyperbole.” The Hoover Institution’s Eugene Volokh offers a thoughtful analysis, concluding “it is not reasonable to interpret Comey’s post as a true threat” and that “this prosecution is unjustified, and will get thrown out.”
Professor Jonathan Turley, a longtime Comey critic, calls the indictment “facially unconstitutional absent some unknown new facts.” [Todd Blanche, acting US Attorney General, claimed Sunday that the government has “a body of evidence” against Comey and “it’s not just the Instagram post that leads somebody to get indicted.”]
Professor David Cole points out that the indictment “lacks an essential element of a true threat crime”—one regarding the state of mind that a defendant-speaker (here, Comey) must have about a message’s meaning. The Supreme Court has determined that the government “must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” This constitutes “a mental state of recklessness.”
As I’ve explained, this doesn’t require the government to prove that a defendant-speaker “acted purposely to put the target in fear” or that he “knew the target would be fearful.” (emphases in original). Instead, it necessitates proving “a speaker’s awareness of a substantial risk of conveying a threatening meaning and ignoring it.” So, whether Comey was aware of—and disregarded—a substantial risk that his post would be interpreted as a threat to kill Trump matters.
The Supreme Court also holds that an alleged threat must be “taken in context.” As I told a reporter, “Seashells on a beach would be an odd context to convey a threat of violence.”
There’s something else many people agree on—the alleged political motivation behind the indictment. As Matthew Continetti, AEI’s Director of Domestic Policy Studies, recently stated, “I think it’s another instance of Donald Trump pursuing retribution against his political enemies.” AEI Senior Fellow Jonah Goldberg called “the Comey prosecution . . . pure nonsense on the merits and a clear abuse of power in intent.” Those perspectives square with The New York Times’s observation that Blanche “has sought to accelerate Mr. Trump’s retribution campaign after the president fired Attorney General Pam Bondi, in part, over his dissatisfaction with her effectiveness in bringing cases against his perceived enemies.”
One item, however, largely missing from the analysis of the Comey indictment is how it trivializes the gravity of more serious online attacks today against government officials. For instance, 24-year-old Joshua Wasson of Jasper, Indiana, was arrested and charged last week with sending threatening statements on Facebook to Hoosier State Lieutenant Governor Micah Beckwith. Wasson has “entered a preliminary plea of not guilty,” but his messages are graphic, explicit, and light-years away from Comey’s seashells post. The probable cause affidavit for Wasson’s arrest lists 11 messages, including:
• a photo of a t-shirt with Charlie Kirk getting shot with the words “PROTECT YA NECK” written on it.
• “Mannnn if only more people like you and your brother could be Charlie Kirk’d (4 laughing emojis).”
• “Hey f—-t, we’re ready for you to drop out of politics and off the face of the earth.”
• “You and you’re entire family are f—–g worthless, can’t wait to see that big beautiful obituary (followed by 5 party emojis).”
Such online statements rightfully merit law enforcement’s serious attention, not seashells arranged in a “86 47” message that Blanche admits is “posted constantly” and does “not result in indictments.”