Walking along a North Carolina beach a year ago, former FBI Director James Comey saw some shells arranged to make out the numbers 86 and 47. He snapped a picture, like you do, and posted it on Instagram with the caption, “Cool shell formation on my beach walk.”
The Department of Homeland Security and the Department of Justice immediately launched criminal investigations to determine whether Comey could be charged with threatening the life of the president. He was even interviewed by the Secret Service.
Ultimately, then-Attorney General Pam Bondi presumably determined that, despite the fevered outrage in Trump world, there was no way to turn these facts into an actual criminal charge.
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And that’s really saying something, since Bondi’s Justice Department was responsible for an unprecedented number of failed prosecutions, including failing to get an indictment for felony assault, and then failing to get a conviction for misdemeanor assault, on someone who threw a salami sandwich at a National Guardsman wearing a ballistic vest.
The James Comey seashell case that was too ridiculous for Pam Bondi
Why was this case too ridiculous even for Bondi? Let’s start with the government’s theory as to why this was a threat at all. Donald Trump is the 47th president of the United States and “86” is an old expression of indeterminate origin that, for pretty much everyone, means “to get rid of something.” So “86 47” would then mean “Get rid of Trump,” a not uncommon sentiment.
A small minority of people interpret “86” as a supposed mafia term meaning “to kill.” Most dictionaries don’t include that meaning in the official definition, however, as it is too uncommon. That Donald Trump Jr. and his father immediately fixated on that interpretation says more about them than it does about Comey.
So the vast majority of people, including Trump’s loyal supporters, wouldn’t interpret “86 47” as any sort of a threat at all. Former Republican Rep. Matt Gaetz once posted, “We’ve now 86’d: (Kevin) McCarthy, (Ronna) McDaniel, (Mitch) McConnell.”
While none of them are dead, all of them have been “gotten rid of” in that they have left or are leaving office.
Comey certainly didn’t interpret it that way. And, per the Supreme Court, having subjective knowledge that what you are saying is a threat is a necessary element of the crimes for which Comey is being charged.
On top of that, the Supreme Court has ruled that, to make the statute compliant with the First Amendment, the threat has to be a true threat, meaning that it cannot be political hyperbole or idle talk. And it doesn’t get much more idle than arranging shells on the beach.
Finally, even assuming that “86 47” was a threat, it wasn’t a threat that Comey made. Comey didn’t arrange the shells. He just found them. So Comey didn’t make a threat. He, at most, documented a threat. Iran, for example, has been directly threatening President Trump quite a lot lately. But that doesn’t mean NBC News is committing a crime if it reports on those threats.
There's a crime here, but it isn't Comey's
There are many reasons why even former Attorney General Pam Bondi wouldn’t touch this “case.” But acting Attorney General Todd Blanche is made of sterner – or at least less squeamish – stuff.
The claim that Comey threatened Trump via seashell has now been revived and an indictment obtained. Blanche knows full well that these charges will be thrown out long before they reach a jury. But this isn’t about getting a conviction. It’s about making Donald Trump happy.
Whether any of this is legal or ethical is beside the point. From making ridiculous statements about the war with Iran and seeking to punish Jimmy Kimmel to minting coins with his face on it and building a gold ballroom, the entire federal government now exists only to massage Trump’s fragile ego and indulge his petty grievances.
Comey isn’t being prosecuted for a crime. He’s being prosecuted for lèse-majesté.
Technically speaking, this isn’t even a vindictive prosecution. These aren’t proper charges brought for an improper reason. It’s just a naked abuse of prosecutorial power in which the facts and the law are irrelevant. There’s a crime here, alright, but it isn’t James Comey’s.
Will we ever see justice done? There’s now a long history of Trump’s lawyers being punished by both courts and state bar associations for ignoring the rules of professional conduct. Several, including Rudy Giuliani and John Eastman, have been disbarred.
Blanche is probably safe for the moment. But the assistant U.S. attorney who signed the Comey indictment, Matthew Petracca, might not be so lucky. In North Carolina, where he practices, a prosecutor can be disciplined for bringing frivolous criminal charges. And they don’t come much more frivolous than this.
Chris Truax is a charter member of the Society for the Rule of Law and an appellate attorney.
This article originally appeared on USA TODAY: DOJ's '86 47' case presents a crime, but it isn't Comey's | Opinion
