Prosecution of ex-FBI chief Comey over seashell post is flawed, experts say

Former FBI director James Comey speaks to reporters on Capitol Hill in Washington, Dec. 17, 2018. (AP Photo/J. Scott Applewhite, File)

The latest criminal charges against James Comey are fundamentally flawed and will be dismissed on free speech grounds, according to legal experts, who said the former FBI director is being singled out for his criticism of U.S. President Donald Trump.

The charges relate to a post Comey made on Instagram ​last May showing seashells arranged on a beach to form the numbers “86 47.” Prosecutors say the post threatened Trump.

Comey, who appeared in court on Wednesday, a day after being indicted over the post, has said he is innocent and will fight the accusations.

Comey’s photo was in “bad taste” but “protected speech,” said David Hudson, a professor at Belmont University College of Law, adding that the post fell far short of being a true threat.

“More reasonably, the message likely means opposition to the president or ejecting the president out of office,” said Hudson. “One of the most fundamental of all First Amendment principles is the ability of individuals to criticize government officials – even intemperately and harshly.”

The indictment marks a renewed push by Acting Attorney General Todd Blanche, who took over leadership of the Justice Department earlier this month, to target perceived political enemies of the president with criminal prosecution. Trump mentioned Comey last year by name in a social media post calling for criminal charges against his adversaries.

The number “86″ is used by restaurants to mean eject, refuse service, or run out of an item. The term is associated with the Prohibition-era speakeasy Chumley’s, located at 86 Bedford Street in Manhattan.

In some military contexts, the term has evolved to mean eliminate or kill.

Forty-seven is a possible reference to Trump as the 47th U.S. president. Prosecutors allege that a reasonable recipient of the message would interpret it as a threat to Trump.

Comey deleted the post shortly after it was published, saying he “didn’t realize some folks associate those numbers with violence.”

Comey, ​a longtime Trump foe, ⁠has now faced two criminal cases from the Justice Department during Trump’s second administration. A previous case accusing Comey of lying to Congress about leaking to the media was dismissed by a federal judge, who said the interim prosecutor spearheading the case was unlawfully appointed.

Experts said he will succeed in having the new charges dismissed as well.

Broad protections

Americans have broad free speech protections under the First Amendment of the U.S. Constitution, which prohibits government infringement on the freedoms of religion, speech, press, assembly, and petition.

In a case from 1969, Watts v. United States, the Supreme Court said the First Amendment does not protect “true threats,” but it does allow for “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

That case involved criminal charges against an 18-year-old man who allegedly threatened President Lyndon Baines Johnson during an anti-war demonstration.

The defendant had told a crowd: “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”

The Supreme Court threw out his conviction, saying his remarks were “political hyperbole.”

In later cases, the high court has said “true threats” are “serious expressions of an intent to commit an act of unlawful violence.”

Clay Calvert, a First Amendment scholar affiliated with the American Enterprise Institute think tank, said Comey’s photo of seashells was more benign than the rhetoric at issue in the Watts case.

“Seashells on a beach would be an odd context to convey a threat of violence,” Calvert said, adding that the case “fits a pattern of retribution by the Trump administration against his perceived political enemies.”

Comey is the “poster child” for someone who has been subjected to a “frivilous prosecution” and “harrassment” by the Justice Department, said Thomas Berry, a constitutional lawyer at the libertarian Cato Institute.

Bery said that while Comey “will never be convicted,” he will have to waste time and money defending himself.

“The process is the punishment,” Berry said.

Reporting by Jan Wolfe; Editing by Noeleen Walder and Stephen Coates, Reuters