Protected Speech Hurdle Complicates Charges Against Comey (2)

Former FBI Director James Comey can easily overcome the Trump administration’s latest indictment against him by arguing the social media post that spurred federal charges counts as protected political speech, defense attorneys and former prosecutors said.

The Justice Department announced Tuesday that a federal grand jury in North Carolina returned an indictment charging the former law enforcement official with physically threatening President Donald Trump in a now-deleted post from last May containing seashells formed into the numbers 86 and 47. DOJ is alleging that Comey, who said shortly after posting the photo that he interpreted the shells as a political message, was suggesting that Trump should be killed.

The indictment marks the latest effort to build a case against Comey, one of the president’s top political adversaries and the target of one of former interim US attorney Lindsey Halligan’s failed prosecutions in the Eastern District of Virginia.

The indictment, however, lacks clear mention of evidence prosecutors presented to a grand jury indicating Comey made a “knowing and willful threat” of violence, criminal defense lawyers and former assistant US attorneys said. It also doesn’t show how the threat allegation squares with the Supreme Court’s long-held position that political speech is afforded the highest standard of protection, they said.

Juries have recently tossed similar DOJ attempts to prosecute individuals who made direct threats against the president, including a including a New York woman who wrote on Facebook she was “willing to sacrificially kill” the president.

The high standard for prosecutors to prove credible threats against elected officials and strong case law defending political speech are enough to thwart the Trump administration’s latest attempt to prosecute Comey before it has a chance to go to trial, attorneys said.

“Statements like this that are in the form of seashells just could not possibly be considered a serious threat or communication of an intent to commit harm by Comey,” said Geremy Kamens, federal public defender for the Eastern District of Virginia.

Kamens has successfully defended several individuals charged under the same statutes as Comey, including a man accused of soliciting Trump’s assassination on social media.

Comey made his initial court appearance Wednesday in response to the charges. He’s represented by Patrick Fitzgerald, who said in an emailed statement that they “look forward to vindicating Mr. Comey and the First Amendment.”

DOJ representatives didn’t immediately respond to a request for comment.

Asked about the indictment at a press conference Wednesday, Acting Attorney General Todd Blanche said that “threatening the life of President Trump” is “a crime. Full stop.”

Comey “will be given every single right, every single opportunity to defend his case in court,” Blanche said.

‘True Threat’

For defense lawyers and former prosecutors, Comey’s social media post is a political statement that itself lacks a clear threat of violence.

The Secret Service opened an investigation last year over Comey’s post. The term “86” is typically considered as slang to refer to ejecting, removing, or dismissing someone, according to Merriam-Webster.

After deleting the post last May, Comey quickly said in another post that he “didn’t realize some folks associate those numbers with violence.”

The Supreme Court has held that in order to prove a statement is a true threat in violation of federal statute, prosecutors must show that it could be objectively and subjectively interpreted as a credible threat of violence, said Cheryl Bader, a criminal law professor at Fordham Law School and a former federal prosecutor.

Given the variation in how “86” is understood, it’s difficult for DOJ to make the argument that it’s “objectively reasonable to interpret this as a true threat,” Bader said.

To reach the subjective component, the prosecution would have needed to show the North Carolina grand jury additional evidence beyond the post itself “that Comey intended this message as a threat to kill,” said Michael Romano, a defense lawyer who previously served as deputy chief of the former Capitol siege section of the DC US attorney’s office.

The doubts on the evidence presented to the grand jury here could be enough for Comey’s defense team to request the judge dismiss the case or request transcripts of the typically secretive grand jury proceedings, Romano said.

Without clarity on the evidence presented, “it’s just very hard to understand how a grand jury could have indicted Mr. Comey on these allegations,” said Jonathan Jeffress, a partner at Kaiser PLLC and a former longtime assistant federal public defender in Washington.

Political Speech

Federal courts have repeatedly leaned toward protecting political speech, even in cases involving statements of violence against the president and other elected officials.

“Political speech, including about potentially removing somebody who’s an elected official, really strikes at the core of what the First Amendment’s about,” Romano said.

In the Virginia case involving the man who solicited Trump’s assassination on social media, a jury acquitted the defendant after his lawyers argued that his comments were protected by the First Amendment and that he never took actual steps to carry out an assassination.

In a January decision from the US Court of Appeals for the Fourth Circuit, a three-judge panel vacated a conviction of a Virginia man who urged others to help the Taliban and fight the United States following the Sept. 11, 2001, terrorist attacks. The appeals court determined the man’s speech was protected under the First Amendment.

The Fourth Circuit encompasses the Eastern District of North Carolina, where prosecutors secured the latest indictment against Comey.

Kamens, who represented defendants in both cases, said that to overcome First Amendment protections, a threat of violence against a political figure “has to convey the intention on behalf of a speaker to commit violence or to use violence under some means that the speaker controls.”

A determination that Comey’s speech is protected doesn’t necessarily need to reach a jury, Kamens said.

“If it’s very clear that speech is protected by the First Amendment, then that’s a legal question that can be decided by the judge,” Kamens said.