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Legal experts sceptical of DoJ case against Comey over seashell post
Observers experienced a tingle of déjà vu this week as they watched the Department of Justice indict James Comey on charges that he threatened his political rival, President Donald Trump.
That was quickly followed by a social media video posted by the former FBI director, defending himself. Then on Wednesday, Comey made the obligatory trek to a federal courthouse, appearing before a judge.
A nearly identical sequence played out last autumn, when the justice department brought different charges against Comey - later tossed out by a judge.
And much like that first case, legal experts expressed scepticism about the department's allegations and a possible conviction. They pointed to the legal thresholds prosecutors must meet, constitutional free speech protections, and Trump's public statements about Comey as potential vulnerabilities for the prosecution.
"It's a very weak indictment, and it doesn't seem to me that it's a chargeable case," said Evan Gotlob, partner at DarrowEverett and a former federal prosecutor.
This seems fit to get dismissed at some point.
Some lawyers predicted Comey would try to have the indictment thrown out on the grounds of "vindictive prosecution", a bid his team made in the first case.
Comey faces two counts, one alleging he threatened to harm the president, the other for digitally transmitting the alleged threat.
The case stems from an Instagram post Comey made last year, which depicted seashells on a beach arranged to form the numbers "86 47".
47" may refer to President Donald Trump, while "86" is a slang term, often identified with the restaurant industry, which can mean to "eject" or "remove.
The justice department argues that a "reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States."
To convict Comey, prosecutors must now prove intent.
"Prosecutors would need to prove that the seashell display was 'true threat,' which the Supreme Court has defined as a serious expression conveying that a speaker means to commit an act of unlawful violence," Barbara McQuade, a former US attorney for the Eastern District of Michigan who now teaches at the University of Michigan.
The government also must show that Comey was reckless in making his post, and knew the risks of doing so, McQuade said.
Comey deleted the initial post, explaining that he came across the seashells while walking on the beach and thought they were a "political message".
"I didn't realize some folks associate those numbers with violence. It never occurred to me, but I oppose violence of any kind so I took the post down," Comey wrote in a follow-up Instagram post.
Because "86" has multiple meanings and Comey stated he did not intend to make a threat, "I can't imagine that 12 jurors will be able to find Comey guilty unanimously beyond a reasonable doubt," McQuade told the BBC.
But Acting Attorney General Todd Blanche defended the charges, which were months in the making, then unveiled after an armed man targeted Trump and cabinet members at the White House Correspondents' Dinner on Saturday.
It was the third apparent attempt on Trump's life in two years: Trump was grazed by a bullet at a 2024 rally, and several weeks later, an armed man staked out his Florida golf course while he played.
Of course, it's serious when you threaten the president of the United States," Blanche told CBS News, BBC's US partner. "Anybody that tries to put forward some narrative that this is just about seashells, or something to the contrary is missing the point. You cannot threaten the president of the United States.
The new charges against Comey were "absolutely, positively not" politically motivated, Blanche said.
"While many of you may view this indictment and view this matter as a simple investigation, it is the farthest thing from that," FBI Director Kash Patel said at a press conference.
He said investigators had worked for "nine, 10, 11 months" on the case and pointed out that a grand jury had voted to issue charges.
Rep Dan Mauser, a Pennsylvania Republican, told NewsNation that Comey's post was "concerning".
It "could certainly be interpreted to mean to carry out violent acts," he added.
But even some ideological allies of the administration seemed sceptical.
Jonathan Turley, a conservative legal scholar who frequently has supported Trump and criticised Comey, argued the case could fail because Comey's post was protected by the First Amendment of the US Constitution.
I would prefer to crawl into one of Comey's conversant shells than write a column supporting him," Turley wrote in a column for Fox News. "However, here we are. The fact is that I believe that this indictment is facially unconstitutional, absent some unknown new facts.
Source: BBC
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