By Mike Scarcella and Andrew Goudsward
ALEXANDRIA, Virginia, April 29 (Reuters) – Former FBI Director James Comey appeared in federal court in Virginia on Wednesday, a day after being indicted over a social media post that prosecutors allege threatened President Donald Trump.
Comey turned himself in on two charges, including threatening the life of the president and transmitting threats across state lines. The former FBI director did not speak during a brief court appearance. His attorney, Patrick Fitzgerald, said he would argue that the case is a vindictive prosecution, meaning it was brought to punish Comey for exercising his legal rights.
U.S. Magistrate Judge William Fitzpatrick of the Eastern District of Virginia ordered Comey released and did not impose any special conditions. His next court appearance is expected in North Carolina, where a federal grand jury returned the indictment on Tuesday. Members of Comey’s family entered the courthouse shortly before the proceeding began.
Comey has said he is innocent and will fight the accusations in court.
The indictment continues the Trump Justice Department’s pursuit of Comey, who was unsuccessfully prosecuted last year in a separate case, and marks a renewed push to target perceived political enemies of the president with criminal prosecution. Trump last year referred to Comey by name in a social media post calling for criminal charges against his adversaries.
Comey listened in court on Wednesday as Fitzpatrick read aloud the charges, which carry a maximum penalty of five years in prison.
SEASHELL POST
The charges relate to a post Comey made on Instagram last May showing seashells arranged on a beach to form the numbers “86 47.”
The number “86” is a slang term originating in the restaurant industry that can mean to “get rid of” or throw someone out. Forty-seven is a possible reference to Trump as the 47th U.S. president.
The indictment alleged that a reasonable recipient of the message would interpret it as a threat to Trump.
Trump told reporters on Wednesday that he viewed “86” as a “mob term.”
“People think of it as something having to do with disappearing, but the mob uses that term to say when they want to kill somebody,” Trump told reporters at the White House.
Asked whether he thought the post put his life in danger, Trump responded, “Probably. I don’t know.”
Comey deleted the post shortly after it was published, saying he viewed it as a political message and was not aware that the number could be associated 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 him of lying to Congress was dismissed by a federal judge.
TRUMP RAILED AGAINST COMEY
Trump has for years railed against Comey over his role overseeing an FBI investigation into alleged ties between Trump’s first presidential campaign and Russian officials in 2016.
Acting Attorney General Todd Blanche has moved quickly to carry out Trump’s demands for criminal cases. Blanche’s predecessor, Pam Bondi, was ousted in part for not moving fast enough on them.
Since Blanche took over the top post earlier this month, the Justice Department has brought criminal charges against the Southern Poverty Law Center, reinstated the firing squad and electrocution as options for the federal death penalty, released a critical report on past prosecutions of anti-abortion activists, and indicted an aide to Dr. Anthony Fauci, former director of the National Institute of Allergy and Infectious Diseases, for allegedly concealing records related to COVID-19 research.
LEGAL OBSTACLES
The case against Comey has been widely panned by legal scholars, who say it likely runs afoul of free speech protections under the First Amendment to the U.S. Constitution. The U.S. Supreme Court has set a high bar for threats cases, requiring prosecutors to prove that a defendant knew or should have known the communication would be interpreted as a threat of death or serious injury.
“It is shocking that this indictment was even brought, and there really is no explanation for it other than it is part of a retaliatory campaign against Comey,” said Thomas Berry, a constitutional lawyer at the libertarian Cato Institute. “There is no chance he will ever be convicted.”
Blanche declined on Tuesday to detail prosecutors’ evidence against Comey, but said the government plans to prove Comey’s intent with documents, witness interviews and Comey’s own conduct.
Legal experts noted Comey’s own statements disavowing the post after it attracted controversy and ambiguity in the meaning of “86” in this context. The First Amendment protects even political speech that uses violent or intimidating language.
“The bar is high because under the First Amendment, we don’t criminalize speech. Words are not crimes, except under a very limited number of circumstances,” said Jared Carter, a professor with the Cornell Law School First Amendment Clinic.
(Reporting by Mike Scarcella and Andrew Goudsward; Additional reporting by Jan Wolfe and Susan Heavy; Editing by Scott Malone, David Gregorio and Nick Zieminski)
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