Exclusive: Former FBI Director James Comey indicted over alleged ‘threat’ against Trump
CNN
By Hannah Rabinowitz, Kristen Holmes, Holmes Lybrand, Tierney Sneed, CNN
(CNN) — Former FBI Director James Comey was indicted Tuesday over a photo of seashells officials said threatened President Donald Trump, marking the administration’s second attempt to prosecute one of his biggest political opponents, three sources first told CNN.
The charges, approved by a grand jury in the Eastern District of North Carolina where Comey allegedly took the photo, include making a threat against the president and transmitting a threat in interstate commerce, according to court documents.
Comey responded to the indictment Tuesday in a video posted to his Substack account.
“I’m still innocent. I’m still not afraid,” Comey said. “And I still believe in the independent federal judiciary, so let’s go.”
The new case represents a reinvigorated effort to satisfy Trump’s demands to investigate his own foes, including Comey, who he sees as a key leader in the perceived effort to “weaponize” the justice system against him.
It also comes less than a month after the president dismissed Attorney General Pam Bondi. Trump had for weeks complained that Bondi was not aggressive enough in executing his agenda.
Todd Blanche, Bondi’s top deputy and a former Trump personal attorney, is now in charge of steering the department, and has moved quickly to act on matters that the president has publicly pushed for.
“While this case is unique, and this indictment stands out because of the name of the defendant, his alleged conduct is the same kind of conduct that we will never tolerate and that we will always investigate” Blanche said at a press conference Tuesday.
Tuesday’s indictment is centered on a picture Comey posted on social media last May, of shells on a beach writing out the numbers “86 47.” He wrote in the caption, “Cool shell formation on my beach walk.”
Almost immediately following his post, Republicans and administration officials went full bore in their criticism of Comey for what they said amounted to a death threat.
When used as slang, the number 86 can refer to getting rid of or tossing something out. Trump is currently the 47th president.
Then-Department of Homeland Security Secretary Kristi Noem announced Comey would be investigated by the Secret Service over what she said was a call “for the assassination” of Trump. The former FBI director sat for an hours-long interview with agents in Washington, DC — an uncommon step by the agency over a non-specific threat — and investigators he saw the shells on a beach in North Carolina.
Court records indicate that an arrest warrant was issued for Comey, but that doesn’t always indicate an arrest is imminent. There is also a possibility Comey will be allowed to self-surrender.
Supreme Court precedent has placed a high bar for convictions in threat cases like these, and former prosecutors and First Amendment scholars alike were highly skeptical the new prosecution would be successful.
“This is not going anywhere. This is clearly not a punishable threat,” Eugene Volokh, a senior fellow at the Hoover Institution at Stanford University who specializes in First Amendment law, told CNN.
A challenging case
The case is likely to be an uphill battle for prosecutors, as the charges require proof that Comey “knowingly and willfully” made a threat to “take the life of” the president.
But Comey removed the post the same day, writing on social media that he assumed the shells represented “a political message” but “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,” he wrote.
The case against Comey is the second effort by Trump’s Justice Department to convict the former director, who became a staunch critic of the president following his firing by Trump in 2017 over the Russia-meddling investigation.
In September of last year, the Justice Department first brought charges against Comey, accusing him of lying to Congress over leaks to the press. The case was dismissed late last year by a federal judge who found that the interim US Attorney for the Eastern District of Virginia had been improperly appointed, having skirted approval from the Senate.
The pattern of multiple indictments against Comey is one of several issues his defense attorneys could raise to the judge in his case in motions to dismiss that, if successful, would prevent the case from ever seeing a jury. In the previous case, Comey argued that the indictment should be tossed because he was being selectively and vindictively prosecuted, but that motion was not ultimately decided.
Comey’s attorneys declined to comment for this story.
In the current prosecution, his defense attorneys could also challenge the indictment on First Amendment grounds. Whether the social media post amounted to a “true threat” is a question courts can review independently, before juries get the chance, Volokh said.
To prove the crime, prosecutors would need to show there was clear meaning to the statement and that would be the clear meaning a recipient would feel, according to Mary Anne Franks, a George Washington University Law professor.
Comey’s social media post is “a very ambiguous statement at best,” she said.
Additionally, prosecutors would face an intent requirement. Under recent Supreme Court precedent they would have to show that Comey was aware that his message could make the recipient fearful and that he callously disregaded the risk it would be perceived that way.
A picture of seashells spelling 86 is unlikely to meet that bar, given the various meanings the term has, said Michael Moore, who served as US Attorney for the Middle District of Georgia Under President Barack Obama.
“This is not (Comey) saying, ‘I am going to kill him,’” Moore told CNN.
Maurene Comey lawsuit continues
Separately, earlier Tuesday, a judge allowed a lawsuit brought by Comey’s daughter Maurene, a former high-profile New York federal prosecutor challenging her firing from the Justice Department, to move forward in federal court.
Maurene Comey alleges she was fired as retribution because she is the daughter of the former FBI director. She is seeking back pay and to have her legal fees paid.
She worked on some of the most prominent prosecutions by the US attorney’s office for the Southern District of New York, including the prosecution of music mogul Sean “Diddy” Combs, Jeffrey Epstein and his accomplice Ghislaine Maxwell, and New Jersey Democratic Sen. Robert Menendez.
On July 16, two weeks after a jury convicted Combs of two counts of transportation to engage in prostitution, Maurene Comey received an email from Washington informing her she was fired “pursuant to Article II” of the US Constitution.
‘Weaponization’ efforts
Comey’s indictment comes as Blanche has picked up the pace in bringing cases that the president has publicly jockeyed for.
In his first week in office, Blanche oversaw the release of the Weaponization Working Group’s first report — one that alleged the Biden Justice Department was biased in how it went after abortion protesters. The department fired four prosecutors who worked on the cases.
He has made changes to the prosecutors overseeing the investigation into former CIA Director John Brennan – one of the most important cases to the president.
And on Tuesday, the Justice Department has been taking steps that are likely to please Trump.
The DOJ is planning to subpoena Fulton County District Attorney Fani Willis’ bodyguards, according to a person familiar with the investigation. Willis prosecuted Trump and many others over their efforts to change the results of the 2020 election.
The Justice Department also charged a former senior official at the National Institute of Allergy and Infectious Diseases with concealing records during the Covid-19 pandemic. Republicans have long gone after officials who led the pandemic response over failures, real and perceived, and before leaving office, President Joe Biden pardoned Dr. Anthony Fauci – the biggest target of all.
The story has been updated with additional information.
CNN’s Kara Scannell contributed to this report.
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