This message is brought to you by Apple Card. Apple Card members can earn unlimited daily cash back on everyday purchases wherever they shop. This means you could be earning daily cash on just about anything, like a slice of pizza from your local pizza place or a latte from the corner coffee shop. Apply for Apple Card in the Wallet app to see your credit limit offer in minutes. Subject to credit approval, Apple Card issued by Goldman Sachs Bank USA, Salt Lake City Branch. Terms and more at AppleCard.com. This is Bloomberg Law with June Grosso from Bloomberg Radio. The Justice Department has indicted former FBI Director James Comey for the second time in less than a year. This time, Comey has been indicted over an Instagram post from May of last year of seashells arranged on a beach, which the indictment claims a reasonable recipient, who's familiar with the circumstances, would interpret as a serious expression of an intent to do harm to the President of the United States. Comey is charged with one count of knowingly and willfully threatening the life of the President, and one count of making an interstate threat to kill the president. Here's acting attorney general Todd Blanche. So I think it's fair to say that threatening the life of anybody is dangerous and potentially a crime. Threatening the life of the president of the United States will never be tolerated by the Department of Justice. Comey deleted the post shortly after it was made, saying he'd assumed that the numbers reflected a political message, not a call to violence. Here's what he told MSNBC at the time. Well, I regret the distraction and the controversy around it. But again, it's hard to have regret about something that, even in hindsight, looks to me to be totally innocent for the reasons you said. But yeah, I didn't have a gut check. In the Trump era, I've been investigated a lot, audited a lot. and so it's not my first rodeo. I'm in some strange way the relationship he can't get over. The Justice Department's last indictment of Comey was on charges that he lied to and obstructed Congress relating to testimony he gave in 2020 about whether he had authorized inside information about an investigation to be provided to a journalist. He denied any wrongdoing and the case was dismissed in late November after a judge concluded that the prosecutor who brought the indictment was illegally appointed. Joining me is former federal prosecutor Robert Mintz, a partner at McCarter and English. Bob, is the first question going to be what those numbers mean? Dictionary U says that it's slang. 86 means to throw out, to get rid of, or to refuse service. Comey said at the time that he didn't know it had those implications. And when he found out, he deleted the post. So, I mean, is the first question what that really means? No, that's exactly right. I think you have to go back and take a look at the original derivation of the term 86. And apparently there are some differing opinions as to where it came from. But the prevailing view is that it started somehow in the restaurant business, and it really had to do with the fact that an item on the menu was no longer available or that a customer at a restaurant was going to be asked to leave the restaurant. And it's only recently that it's come up in political terms, in a political context. One of the most prominent use of the term 86 in the last several years was back in February of 2024, when at the time Representative Matt Gaetz of Florida posted, We've now 86ed McCarthy McDaniel McConnell, which was apparently a reference to Kevin McCarthy losing his House speakership, Republican National Committee Chair Ronna McDaniel leaving her role, and Senator Mitch McConnell announcing he would step down as majority leader. So we seen the term 86 used in a political context sometimes meaning to get rid of a political leader Here the government apparently is going to try to convince a jury ultimately that this was a statement by former Director Comey to incite violence against the president. And when he said 8647, he was trying to invoke. He was he was he was arguing that somebody should should he was arguing that the president should be assassinated. That's really the heart of what this prosecution will ultimately be about. This was investigated. And in fact, Comey was interviewed about this a year ago and nothing was done. And now all of a sudden they're indicting him on this. Well, that does raise an interesting issue because I think that we'll see among the defenses that Mr. Comey's lawyers will raise here is number one, as you mentioned a minute ago, the dictionary meaning of 86 suggests that it means to get rid of or to refuse service or to throw out. And so it's not at all clear that Mr. Comey intended that to be a threat. In fact, the statement that he made at the time that this became an issue and at the time he was interviewed by the FBI was that he had no idea that it was a threat to violence. He viewed it as a political message. And as soon as he understood that some people might interpret it as a threat of violence, he immediately took it down. So the defense is going to argue that this is really a First Amendment issue. They're going to say that there's no criminal intent here because it's important to remember that in order for the prosecution to prove their case, it focuses solely on the mindset of the defendant. So in other words, they have to prove that the defendant here, Mr. Comey, was knowingly and willfully intending to threaten the president with violence here. The standard is not what somebody who heard the message may have interpreted to mean. It focuses solely on what the speaker, in this case Mr. Comey, intended when he wrote those words. And will we see in any defense by Comey claims of malicious prosecution? It's only been five months since the last indictment against him for something else was dismissed by a judge. I think that will certainly be among the defenses and the themes of any defense if this case ever were to go to trial. statute at 18 U.S.C. 871A, which criminalizes the act of knowingly and willfully making any threat to take the life of, to kidnap, or to inflict bodily harm upon the president of the United States. There's also another statute, which is a slightly broader prohibition, which criminalizes threats through interstate communications. But these all turn on the prosecution's requirement to prove beyond a reasonable doubt that these comments were a serious expression conveying that a speaker means to commit an act of unlawful violence. And the key to that, based on the cases that have interpreted this language, is that these threats need to be detailed and they need to be imminent. So these cases have come up in constitutional cases, which are First Amendment cases where the courts have looked at the constitutional guarantee of free speech and free press and basically held that you cannot create a law that forbids or prescribes the advocacy of the use of force or even the violation of the law except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce that action. So the prosecution here would have to show that these threats were real, that they were imminent, and that they were specifically intended to incite violence. And that's going to be an uphill battle. Related to that is the fact that the defense will likely argue that this is a selective form of prosecution and that there's a political motive here because they will try to argue that the Justice Department already pursued a case against Mr. Comey less than a year ago, which was ultimately dismissed by a judge based upon the finding that the prosecutor at the time was not properly appointed. So they going to try to argue that this is just another attempt by the Trump administration to go after one of Mr Trump perceived enemies James Comey and that there really no merit to this case that this case should not have been brought in the first place, and that at best, this is a politically veiled attempt to try to go after Mr. Comey after having failed with the other prosecution. Reportedly, the Justice Department is still looking into indicting New York Attorney General Letitia James after their initial indictment failed. Do judges have this in mind when they're considering the indictment, even if it's not brought up in the papers? I mean, they're aware that the Trump administration has set out to indict his political enemies because he's asked them to. Well, that's certainly, I think, something that you'll see the defense argue. I think most judges will be constrained to look at the face of the indictment itself and try to determine whether the government has probable cause to proceed with the case. As you know, it's very, very difficult for a defense lawyer to get a criminal case dismissed prior to going to trial. It's just something that prosecutors generally prevail on because, again, they only have to go before a grand jury and establish that there's probable cause that a crime's been committed and probable cause that the defendant who's named in the indictment has committed that crime. That is a much lower bar than beyond a reasonable doubt, which is the standard that they have to meet in order to gain a conviction at the end of a trial. So the difficult situation that defense lawyers find themselves in is even if a case is inadequate in terms of proving the evidence beyond a reasonable doubt, prosecutors will often get that case in front of a jury unless a judge looks at the evidence and makes the determination that no reasonable jury could find there was sufficient evidence to convict. And in that case, judges will step in and dismiss cases before they go before a jury, before there's even a trial. Coming up next on the Bloomberg Law Show, I'll continue this conversation with former federal prosecutor Robert Mintz of McCarter in English. What constitutes a true threat under the statute charged? I'm June Grosso, and you're listening to Bloomberg. This message is brought to you by Apple Card. Apple Card members can earn unlimited daily cash back on everyday purchases wherever they shop. This means you could be earning daily cash on just about anything, like a slice of pizza from your local pizza place or a latte from the corner coffee shop. Apply for Apple Card in the Wallet app to see your credit limit offer in minutes. Subject to credit approval, Apple Card issued by Goldman Sachs Bank USA, Salt Lake City branch. Terms and more at AppleCard.com. As markets move and headlines break, what matters most is context. A Bloomberg subscription gives you unmatched reporting, sharp analysis, and powerful tools that help you connect the dots. Visit Bloomberg.com slash podcast offer to learn more. Former FBI Director James Comey was indicted again today, this time over a social media photo of seashells arranged on a beach that Justice Department officials say constituted a threat against President Donald Trump. Here's Acting Attorney General Todd Blanche at a press conference following the indictment. 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 and regularly prosecute. The indictment filed in eastern North Carolina charges Comey with two felony counts, each punishable by up to five years in prison. The Justice Department indicted Comey the first time around last September on charges that he lied to and obstructed Congress. He denied any wrongdoing and that case was subsequently dismissed. The dismissal was just five months ago. I've been talking to former federal prosecutor Robert Mintz, a partner with Carter in English. Bob this indictment came out of a North Carolina grand jury I wondering if it was a D grand jury if they would have returned the indictment considering that the Justice Department has been having problems getting indictments from D grand juries Well, there certainly has been a lot reported in the media, and people are generally aware of the fact that there have been allegations of the Department of Justice becoming politicized. In other words, prosecutions that are being brought not based on the decision of career prosecutors based on the facts and based on the law, but there are directives coming from the White House and other agencies in the federal government urging the Department of Justice to bring these cases. Whether or not that's correct or improper, the reality is that it does create in the minds of the average citizen, these are the people who ultimately sit on these juries, whether they be in the District of Columbia or anywhere else in the country, it does create in their minds a question about whether these cases are being brought for political reasons. And that's something that you're going to see any defense lawyer in any of these cases try to raise during the course of the trial or even before that to try to get the judge to dismiss the case as a case that is brought purely for political reasons. This is a case where I think the defense is going to be able to make that argument because I think just based on the fact that there is a picture of these seashells with the number 8647 without anything more than that, without any other spoken words by James Comey, without any conduct by James Comey, that's going to be a real uphill battle for prosecutors to convince a jury that that was a threat to the president's life and that that was an imminent threat. Because again, they have to show more than the fact that there is a political statement. And frankly, they have to show more than it was an attack on the qualifications or the credibility of the president. They have to show that it was an actual imminent threat to violence. And that will be a difficult case to show here simply based upon the very limited evidence that we're aware of at this time. And Bob, put this in the context of what the Supreme court has said about these kind of threats? Anytime prosecutors use this statute that addresses knowing and willful threats to take the life or to inflict harm on the president, it always has to be viewed through the lens of the implications against the First Amendment. And that's why we've seen these types of cases, which may appear on their face to be simply threats against the president as something that could also be viewed as political speech. An example of that occurred in a case called Watts v. United States, where this very statute was interpreted in light of a strong First Amendment background. And in that case, a protester was convicted for saying, if they ever make me carry a rifle, the first man I want to get in my sights is LBJ, a reference to President Johnson at the time. That individual was convicted but it made its way to the Supreme Court where the court said that that was political hyperbole rather than a true threat and thus not within the prohibition of this statute. So it's an example of just how specific and how imminent these threats have to be and why the courts have at least traditionally looked at this kind of language as political language rather than a call to violence. And in this case, I think it's going to be an uphill battle for prosecutors to prove that this was not political speech, that this was an actual imminent threat made by James Comey against the president. It will be interesting to see whether Comey is allowed to turn himself in as he was last time or whether he's actually arrested because there is an arrest warrant here as well. Thanks so much, Bob. That's Robert Mintz of McCarter and English. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.
