213. James Comey and Seashells on the Seashore

Añadido: 2026-05-15

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[00:01:38]>> I'm Alice.

[00:01:40]>> And I'm Brett.

[00:01:41]>> And this [music] is the prosecutor's legal news.

[00:01:49]>> [music] [music] >> Welcome back to the Prosecutor's Legal Briefs. I'm your host, Alice, and I'm joined as always by my killer co-host, Fred. [laughter] You know, Alice, but not a real killer.

[00:02:18]More of a metaphorical killer.

[00:02:21]>> Just like what we'll talk about today.

[00:02:22][laughter] >> Exactly. It's all about metaphors.

[00:02:24]>> It's all about metaphors.

[00:02:26]>> Symbolism, analogies, >> social media.

[00:02:30]>> Social media. Yeah. Also an important factor. something that could come in come >> something that is actually very relevant for you because I've told you to be less fiery online and you have always said Alice stop being such a worry war it's just the internet >> exactly and >> how wrong I was >> how wrong were you but sometimes being a little fiery or even just mysterious can lead to killer indictments >> killer >> not really killer indictments but indictments accusing you of being a killer >> [laughter] >> The wouldbe killer.

[00:03:05]>> Wouldbe killer.

[00:03:07]>> I know. I thought I was thinking about assassin of a co-host. I was like too on the nose. Not really an assassin because you're not hiring someone else to do your job. Kind of. Maybe not. I don't know.

[00:03:16]>> It's true.

[00:03:17]>> Okay. What are we talking about, Brett?

[00:03:18]We are obviously talking about the killer indictment that dropped very recently against James Comey, former director of the FBI. That's all I have to say. You know, I mean, I don't know what else you need to say. James Comey, former director of the FBI. You know, James Comey's one of those people who he could compete for the title of most hated man in America because most people are hated by one side of the political spectrum or another. But there's a good chunk of people regardless of their politics who really don't like James Comey for various things that he has done throughout his career. Some people blame him for Hillary Clinton not being president. blame him for Donald Trump being president. Other people blame him for various conspiracies about the president, including the Russia collusion allegations, things along those lines. He brings people together in some ways from both sides of the aisle who really don't like him. And I mean, I'm not going to say that's led to some of his legal troubles, but certainly he is a lightning rod for controversy. I'll put it that way.

[00:04:34]Lightning rod for controversy.

[00:04:36]>> It's hard when both sides of the aisle really hate you. [laughter] >> Yeah. You know, and you >> and and you say that because when we do have, you know, heated cases, there's usually like, you know, a side that's like, "No, they're free Karen Reed people, right? They come out with their shirts and their posters." It's hard in this case because we'll talk about the indictment in this case and whether it's supported and whether it's a case that should be brought. It's hard for people who really dislike him for other reasons that have nothing to do with this indictment to be like, "You're who we want to fight for cuz we really dislike you, man." And so, he's just I don't want to be him.

[00:05:12]>> So, we are going to give you the same piece of advice we've given you before when we talked about indictments. Put aside your specific thoughts about this individual person. Whether you love him, whether you hate him, whether you think he should have been in prison 10 years ago, or you think you should be in prison today, just get rid of those thoughts and let's just focus on the facts. Because when we just focus on the facts, I think we can learn something about the law and make some judgments about this particular indictment. So for those of you who are living under a seaell and don't know, maybe a few seashells and don't know what happened.

[00:05:50]So, James Comey was indicted not for some What would a former director of the FBI be indicted for? Maybe leaking to the Russians or the Chinese like being a >> creating conspiracy theories, directing agents to do illegal things, hiding intelligence information.

[00:06:08]>> Exactly. All those things. That is not what he got indicted for. What he got indicted for is threatening to kill the president. That's what he got indicted for. And you may think, "Wow, the former director of the FBI threatened to kill the president of the United States.

[00:06:28]That's insane. How did he do that? Did he call the president and say, "I'm going to kill you." Did he write a letter saying, "You're going to die for everything you've done?" Did he send an email or maybe do a YouTube video talking about how he was going to kill the president? No. No. He sent an Instagram post of some seashells on the beach arranged in a pattern that appears to be the numbers 86 8647.

[00:07:02]8647 which has been interpreted as 86 47 with 86 meaning in this interpretation kill and 47 meaning the 47th president of the United States Donald Trump kill Donald Trump and in the caption to this post he said cool shell formation on my beachwalk because he's still a boomer right he's still like a complete loser so that's the caption of this what is alleged to be by the Department of Justice a threat to murder the president. That's I don't know what you're what about >> Also, by the way, you may be thinking, my god, was this Instagram posted as shots were being fired or right before the shots were fired at the White House correspondents dinner when the manifesto was released? No, this was this was posted like months ago. A year ago.

[00:08:02]>> 11 months ago.

[00:08:03]>> 11 months ago. Almost a year ago. And if you have not seen a picture of this, I think >> I'm about to pull one up. I think he did ultimately remove it.

[00:08:13]>> He did. He deleted it after some push back.

[00:08:16]>> Yes. Because as soon as he posted it, people were like, "What the heck?"

[00:08:19]Because the 86 the people were like, "This even if you didn't know what that meant, take it off. This looks bad." So he he did remove it. I would like to think we can all agree that it's a bad thing to suggest someone should kill the president to the extent that's even what this mean. Just assume for a second that's what it means. Bad thing. I think it'd be a bad thing no matter who it was. Trump, Biden, Obama, Bush, Clinton, Bush won, Reagan, whoever it is. I don't think you should threaten to kill the president. I don't think you should joke about killing the president. I think it's just a bad thing, morally wrong thing to do. I wouldn't do it. I don't think you should do it either. So, there was a lot of backlash about this and he removed the post. But, I mean, the thing about a crime, you know, if you walk into a bank and you rob it and you leave and you're like, "Ah, I really shouldn't have done that. That was bad." And you take the money back, you still robbed the bank. So, the the theory here is that even if he eventually decided to delete the post, just the posting alone is enough to constitute a crime. So to the extent this is a crime, the later deletion of it doesn't help him all that much.

[00:09:31]>> But of course, what matters here is just because someone does something you don't like doesn't necessarily make a crime.

[00:09:37]Oh, but there is an indictment here and there is a crime that DOJ is alleging this post is.

[00:09:45]>> And so let's talk about that because I think this has not been clear in the reporting on this case. This is a twocount indictment. This count one title 18 USC 821A makes it a crime to threaten the life of the president. Very simple and straightforward. If you threaten the life of the president, that's a crime. And here's how the indictment is worded. So this is what he is actually accused of. On or about May 15th, 2025 in the Eastern District of North Carolina, the defendant, James Brian Comey Jr. did knowingly and willfully, which are important, make a threat to take the life of and to inflict bodily harm upon the president of the United States. In that he publicly posted a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out 8647 which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the president of the United States. That's what he's that's that's count >> the first time you saw this post. Did you know what it meant? Did you know what it was being interpreted to mean?

[00:10:59]I'm talking May 15th, 2025. Like I saw the picture.

[00:11:03]>> Really? This is a really important question that Alice is asking because this is actually kind of the key to the whole thing. So a reasonable person who sees this has to take it and and the indictment says this has to take it as oh my god, James Comey just said he's going to kill the president. That has to be how you take it, right? I thought 86 meant throw him out. Like I thought he was basically saying impeach the president, kick the president out of office, get rid of the president. I didn't necessarily think kill the president was what 86 meant. And it's actually a problem for the indictment that 86 has >> multiple meanings. But before we even get there, I'm just curious cuz like when I first read like back in May 2025 when there were articles about it, there's the picture of it and I looked at the picture first before reading anything. Like what was your fuz cuz my I will tell you my my reaction. I was like I don't know what that is. I could see 47 and I honestly couldn't tell what 86 was. And then I thought it said S647.

[00:12:10]>> I mean my initial thought was wow James Comey is such a loser. Like what a loser James Comey is. the caption. I saw the I saw the 8647 and had a general idea. And the thing is it had been out there like other people had said similar things to that. So it was like, oh, here's James.

[00:12:29]>> And that's where I think the indictment would have to lean heavily because just an 8647 standing alone, it's not like a particularly common phrase, right, to say that. I think they're going to have to lean heavily on the fact that he was in chat rooms or it was a joke that they made that this was something that was out there that people would even know what 8647 meant.

[00:12:52]>> Well, what's funny is there were shirts people sold that said 8646 which worked better. 8646 is like this cuz Biden, you know, which the people who sold those shirts like, "Oh, we just meant like vote him out of office. We didn't mean kill him, right?" But so this is sort of a I don't know. Like to me, no offense to boomers, I love you. You're great.

[00:13:16]But this is such a boomer thing. Like 8647.

[00:13:20]It's just so pathetic. And that's the thing. Like I have so little respect for James Comey. I mean, he is just one of the worst people. He is an absolute megalomaniac. I can't stand him. And so for me, when I saw this, I just thought, "Wow, what an idiot." Another dumb thing James Comeyy's done. That's all I thought. I certainly didn't think, "Oh my goodness, someone get eyes on James Comey."

[00:13:43]>> He's making a threat on someone's life.

[00:13:45]Especially, by the way, when the caption is like, "Cool shell formation."

[00:13:50]>> What a loser. [laughter] Like, come on, man. You didn't just stumble upon that.

[00:13:54]You're >> You did not stumble upon that, obviously. And Joe makes a really good point and and I asked you that because maybe I just don't hang out in the same circles as you, but like it took me a while to see literally the numbers 86 space 47. And then it took me a little bit of time to be like, oh, that's how they're interpreting it. I mean, you did not think, oh my gosh, he's going to kill the president or calling on anyone to kill him. And Joe makes a good point that it's not so universal. Again, remember it's a reasonable person standard here that we're talking about in section 18 USC 821A like 911 or even maybe 420, right? Like the the date or the time or something like that where it's so universally known. I think there are large swaths of jury pools who will actually not know if they were given this with no background what 8647 is meant to say. And that's a problem because of course we're talking about the prison party. Maybe I hang out in different circles than you, but I think it's fair that I do hang out in those circles.

[00:14:58]>> I can't believe if this goes to trial.

[00:15:01]There's going to have to be evidence put on about what 86. There going to be an expert, a pop culture expert, American studies majors. This is your >> I don't want to I want to want to expertise this.

[00:15:12]>> It's like I saw the movie Rico. In that movie, that 1927 film, Rico says 86 and he meant kill. And James Comey is a boomer. And so he probably saw that movie, too. And he was like, "Oh, 86."

[00:15:28]Yeah, kill the president. I mean, look, it literally could have imagine it spelled out kill 47 or kill Trump. Who would have shells that said that? That would at least be a little clearer. But this is a hurdle you're going to have to overcome in any kind of prosecution to prove that this actually meant kill the president. You're going to have to overcome that. But we'll get into that more as we talk more about the law.

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[00:17:01]Remember, this is a twocount indictment. So that was count one. You're thinking, okay, the meat of it coming now. So count two is title 18 USC 875C, which makes it a crime to transmit the threat in commerce because it has to have a federal nexus.

[00:17:21]And how do the feds get involved in something that would otherwise like assault? typical threats like if you're just screaming at like your delivery guy, you know that you're going to kill him, that would all be state and local.

[00:17:32]So, how did the feds get involved? It has to be transmitted in commerce. So, this is actually important because [laughter] it allows the feds to take this into their jurisdiction. So, this is the same language. It's by public.

[00:17:45]They say that he's in violation, James Brian Comey Jr. is in violation of 18 USC 875C by publicly posting a photograph on the internet social media site Instagram, which depicted seashells arranged in a pattern making out 8647, which a reasonable recipient who was familiar with the circumstances would interpret as a serious expression of an intent to do harm to President Trump.

[00:18:12]So, it's the fact that it was on Instagram, which is on the interwebs, and the interwebs cross state lines.

[00:18:20]>> And I just want to note the language we're using is the language of the indictment. Reasonable recipient who is familiar with circumstances would interpret as a serious expression of an intent to do harm to President Trump.

[00:18:32]So, I just want to be clear about what the indictment alleges because online you had a lot of people who say things like, "James Comey was director of the FBI. He knows there's a lot of crazy people out there. He knows how they would take this. They would take this as an invitation to go and kill the president." That is not what they are alleging he did. They are alleging that he, James Comey, threatened to kill the president. Period. End of story. That is what they are saying that when he wrote 8647 he essentially said I am going to kill the president. That is what he said with 8647 and that is not my interpretation. That is what the indictment literally says. So what does the law say about this? Well, let's start with Watts versus United States.

[00:19:23]This a case from 1969. It is the foundational case in this area because it's about a threat against the president and what it essentially says is the government must show what is called a true threat. So what's he's at a public protest in Washington DC and while he's in this protest about the draft and about the Vietnam War, somebody yells at him, "Man, you don't know what you're talking about. You need to get educated on this issue." you. And here's what he says in response. They always holler at us to get an education.

[00:19:58]Of course, there was an FBI agent, undercover FBI agent there at the time because they're always watching you people. They always holler at us to get an education. And now I have already received my draft classification as a 1A and I have to report for my physical this Monday. I am not going. If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.

[00:20:20]He was the president at the time. So, he is arrested for threatening to kill the president because he just said he's being drafted and he says, "If I get drafted, I'm going to shoot the president." That's essentially what he says. He gets arrested. He's charged with threatening to kill the president.

[00:20:35]Note, a much more direct threat than 8647. He's essentially saying, "I am going to shoot the president." And he was arrested and charged with violating that provision. The court in a procurium decision, the Supreme Court held that this kind of quote political hyperbole was not a true threat, noting that political discord might be interpretative, abusive, and very crude, but nevertheless protected by the first amendment. So essentially what they're saying is even if you express your political views by saying something like the president should die or this feels like hyperbole. It feels like he's not literally saying if I get drafted I'm going to shoot the president. He's using hyperbole to establish how serious he is about his disagreements with the president. And the Supreme Court had no problem in a not even a Nino opinion, but a procurium opinion, which is rare from the Supreme Court because it means it's just so obvious to them that they're like, "This is silly." Like, you can't prosecute somebody for that and they reject it. And that is the foundational basis for these kind of threat cases.

[00:21:51]>> So, no, even though it's not in the statute, what the Supreme Court is saying is it can't just be any kind of threat because we have the First Amendment. We care about free speech here. it has to be a true threat. So then of course the work goes to defining what a true threat is. So following the Watts case, the true threat has come to be defined as quote a serious expression of intent to commit unlawful violence and that a reasonable person would foresee the statement as a genuine threat excluding political hyperbole or mere justest. That last bit excluding political hyperbole or mere jest. In other words, mere justest or political hyperbole are not true threats.

[00:22:31]>> And you saw this. I mean, I remember I'm sure you've all seen this. Somebody had that image. It looked like President Biden was tied up and in their trunk that like a photograph on the back of their car. That is crass and horrible and you shouldn't do that. And frankly, you're just a trashy person for doing that. It's not a true threat. No one really thought Biden was in the trunk and nobody thought the guy was going to drive and get Biden. Like we as a society, unfortunately in some ways, but it's fortunate it's protected in others.

[00:23:04]We can say terrible, horrible, awful things about our elected representatives. You can say just about anything you want about a representative and it's not defamation and it's it's not a threat. That is a feature, not a bug, of our country. And we don't have in other countries. Some of y'all listening in Europe probably find all this to be strange because, you know, in some countries in Europe, you can be arrested for basically anything, the things you say can be actual crimes. In the United States, the things you say are almost never crimes. It has to be so bad or so imminent for the thing you say to put you in jeopardy of government action. And it's the First Amendment.

[00:23:47]It's the foundation of everything we believe. It's the heart of our democracy and that's why we have all these protections.

[00:23:54]>> So the most recent case defining talking about true threat is Countermanmen versus Colorado which is a Supreme Court case from 2023. So Countermen established that something more than the reasonable man test was necessary to show a true threat. It's not enough just to show that a reasonable person would perceive the words as a threat. There must be some subjective intent to make a threat as well.

[00:24:20]>> So over a series of years, let's talk about countermen. Okay. Number one, hear that. What that means, it's not enough that a reasonable person hearing what you said would think it's a threat.

[00:24:32]That's not enough. You had to to some extent have intended that to be a threat. And you and you could imagine a scenario where this goes down. I mean, you know how sometimes like two bros are like play fighting and some passer by sees it and they think, "Oh my goodness, there's a fight going on here." And they call the police and the police show up.

[00:24:55]Actually, yall know I love On Patrol Live. I watch it every week. This literally happened a couple weeks ago on Home Patrol Live. It was like they were at a birthday party and these two dudes were like wrestling and someone saw it and thought it was a real fight and called the cops and the cops show up and they're like, "No, man. just we're just having fun. It's no big deal, right?

[00:25:13]Well, essentially it's that this person saw this, thought it was a real thing going on, but when the cops showed up, they realized, oh no, the people involved didn't intend that at all. And it takes both. You got to have both or you don't have a crime. And that's what we're saying here when it comes to these kind of true threats. And Countermanman is kind of striking on this because you may see this and think, "Wow, I can't believe this went to the Supreme Court."

[00:25:43]And I can't believe the guy won. So Countermanman over a series of years stalked a lady who we only know her initials cuz she's a victim, CW by Facebook. She was a performer. She would play music at various bars and clubs around town. You know, she'd go down, play a gig at this bar, and play a gig at the other one. This guy apparently saw her at some point, became obsessed with her, would send her a large number of messages. A lot of them were quote unquote innocuous, though they're not innocuous if you're getting them from some rando, like, "Hey, I'm going to the store. Do you need anything?" That's almost creepier than some of the more objectively threatening ones he sent. He sends her all these stalky type messages. They also included actual threats like staying in cyberlife is going to kill you and you're not being good for human relations die. So this woman was in fear for her life. She wouldn't go out. I mean she had legitimate concerns about this guy and eventually Counterman was arrested and he was charged under a state threat statute. So not the federal ones we're talking about but the same constitutional provisions apply.

[00:26:52]counterman moved to dismiss the charges and the trial court denied the motion finding that the only thing that mattered was whether or not a reasonable person would have considered these statements to be a threat. It does not matter what his subjective intent was.

[00:27:08]Whether he intended to threaten, that was not required to present a true threat.

[00:27:14]>> So the Supreme Court reversed. The court found that some subjective intent to threaten was sufficient, though the recklessness standard was sufficient.

[00:27:22]Recklessness, as we've said before, essentially means that he was subjectively aware of a substantial and unjustifiable risk. In this case, the risk that the person receiving the message would perceive it as a true threat. In other words, the mindset would be something like, "They'll probably take this as a threat, but I'm going to say it anyway."

[00:27:41]Thus, it's not necessary to show that he intended to threaten someone, but you essentially have to show that he intended for someone to take his words as a threat. Because otherwise, you can see he'd just be like, "I never meant that when I kept saying, I'm going to kill you. I'm going to kill you. I'm watching you. I'm going to kill you."

[00:27:57]But the fact that the reasonable person would say, "Well, even if you did not subjectively intend to say to kill her, you knew that she was going to take it as that because you're some rando who's been stalking her."

[00:28:07]>> And you can see why that's important, right? Because you you don't want someone's defense to be, I was just joshing. I I would never kill her. I love her. She's the love of my life. Of course, I've never killed. You can imagine what a stalker would say. You don't want someone to be able to say that. So, the idea is, well, yeah, but when you said die, when you said, you know, you deserve to die or you say even worse, like I'm going to kill you, that's going to be a threat, and you should know that. And so, that's going to be enough. You don't have to reach the higher level of pure intent to issue a threat. So when you take counterman and take these other cases in some in order to make a true threat a reasonable person would need to perceive it as a true threat to commit an act of unlawful violence. And in making this threat, the utterer, the person who says it, would need to be at least reckless in doing so, understanding the high likelihood that the hearer would perceive it as a threat. And the reasonable person's standard requires the consideration of the entirety of those circumstances, including the tone, the audience, the medium of communication, and the broader exchange in which the statement occurs.

[00:29:23]And this is meant to encompass political debate, right? So me and Alice, like two losers like we are, there's a little bit of a lower threshold for me to say something that's threatening for her cuz we're just two private people. But when you're discussing politics, what it takes to threaten someone might be slightly higher. It's all going to depend on that context. Now, interestingly, the counterman opinion was written by Justice Kagan. Robert Celo, Kavanaaugh, and Jackson joined it in full. So, that's an unusual five justice majority, right? Kagan, Robert, Celto, Kavanaaugh, and Jackson. Then you got Sodtoayor and Gorsuch who joined it only in so much as they agreed with the result. They disagreed that recklessness was enough to constitute a true threat.

[00:30:12]They thought you needed intentionality.

[00:30:15]So you had to actually show that the person intended it to be a threat. It's not enough recklessness. So they would have an even higher standard that you'd have to meet. And then Thomas and Amy Coney Barrett desended all together. So they descended from it in totality. It really is a five decision in that recklessness is enough. So you could imagine a scenario, maybe one that we're looking at now, where you would [laughter] have an even higher standard if it were to reach the Supreme Court.

[00:30:45]>> We always say bad facts make bad law.

[00:30:47]Well, here we go. So, one note, some people have already suggested that Comey isn't guilty of a threat per se because of the manner in which this is conveyed, but rather is guilty of inciting others to violence. So the bar for this is actually even higher if it's incitement to violence because incitement is a quote hair's breadth away from political advocacy. Incitement requires specific intent to incite imminent lawless action when the encouragement of that lawless action is likely to work. Simply put, they would say there's no indictment here, right? And by the way, you guys have probably heard about this incitement to violence standard before because this was talked about a lot whether [snorts] what President Trump said before January 6th was incitement to violence. So this has actually been part of the political discourse and the legal discourse for several years. And it's interesting, of course, now that the Trump DOJ is using this [snorts] particular indictment to go after James Comey. So, the thing to note here is you're going to hear a lot of people be like, "Well, it's okay. The indictment's not good." But it doesn't matter. It's not a threat. It doesn't matter what he did because what he's trying to do is make other people act on it. Just know that doesn't work here for the indictment for purposes of meeting the standard because if you're relying on incitement to violence, the standard is actually way higher.

[00:32:16]>> Incitement is almost impossible to prove. The Supreme Court just has you basically have to be in a situation where there is a person right there and the mob is totally under your sway and you say, "Go attack that person and they go do it." it has to be that imminent and then it's likely to work thing like a [snorts] person on the street corner in front of the White House saying somebody needs to go kill the president right now and they're like a lunatic, you know, just like a crazy person.

[00:32:51]They're actually not inciting because there's no one who would listen to them.

[00:32:55]They're not actually influencing anyone.

[00:32:57]And and that may seem strange to you, but it once again it all goes back to the First Amendment. There's such a high bar you have to meet if you're going to be charged for saying words. We just don't like to charge people with crimes for saying words or arranging seashells or whatever. We just don't like to do that. So, the standard is really, really high.

[00:33:19]>> Does this case have to go to trial? Is that what has to happen then? Because there's an indictment. This is not something that's just being talked about or a press release. There is an indictment. He has been charged with this crime.

[00:33:32]>> And I have a lot to say about this.

[00:33:33]Maybe after we get through with the legal aspect of it. Have many opinions to share.

[00:33:38]>> Now that you can share them.

[00:33:39]>> Now that I can. Exactly. I love it.

[00:33:42]Freedom, baby. So like, [laughter] okay, imagine for a second you're out there thinking, "This seems like a really bad indictment. Is there any way to get around it without going to trial?

[00:33:54]Because trial is difficult and it's expensive and it's costly and it's awful and it's terrible." Do you really have to go to trial if it seems like maybe the indictment is pretty weak? Generally speaking, the answer is yes. We talked about this before. The grand jury is supposed to be the great buffer that stops these kind of indictments from going forward.

[00:34:17]>> I am really surprised a jur grand jury didn't let this through.

[00:34:21]>> I'm really disappointed. I'm really disappointed, but I'm also really surprised because we've obviously presented to a lot of grand juries. And yes, almost all of our indictments came back with the true bill, >> but my experience with grand juries is actually I am impressed with the amount of time and effort they put into it and it was long hours that they put in and they asked thoughtful questions. So yeah, I would not say that my experience with the grand jury, though the effect >> may look like that they would have indicted a ham sandwich. What happened in that room was thoughtful and they put us through our paces, which they're supposed to do. I've had a grand jury say, "Oh, I have questions." And I was like, "You know what? I'm going to pull this because you're clearly going to know bill it. So, let me work on it some more." Came back the next time. They remembered. I answered their questions.

[00:35:09]They said, "Thanks for answering those questions." Then they voted and got a true bill. That's my experience with grand juries.

[00:35:14]>> But that's not what happened here. What happened here is they returned an indictment. So what do you do at this point? It's really hard to get indictment dismissed. Now, it's not impossible, but it's very difficult.

[00:35:25]Typically, when you have an indictment, unless you can point to some sort of legal defect, you're going to have trouble. Now, the issue here, though, and look, the courts have said that whether or not something is a true threat is typically a question for the jury to decide. That is the general position of the courts on this question.

[00:35:45]However, this is in the fourth circuit.

[00:35:47]There have been district courts who've dismissed indictments on first amendment grounds in the fourth circuit and they do it on as applied grounds. So they don't say the statute is unconstitutional because of the first amendment. They say as to this particular case, the first amendment prevents you from being able to try someone. Now, how are you going to get there in a case like this? I think the defense could stipulate for the purpose of the motion to dismiss that the sea shell picture means exactly what the government alleges it means in the indictment, which is kill Donald Trump.

[00:36:32]Just stipulate that it means kill Donald Trump. If that's what it means, then as a matter of law, that is neither a true threat nor incitement. It lacks the imminence of incitement. It's not an imminent threat. The president's not right there. You're not telling somebody to do it. You don't have that. And it lacks the subjective intent of a true threat. It's saying someone else should kill the president. It is not saying I, the speaker, am going to kill the president. So that would be the argument I would make as the defense. I would move to dismiss and I would say even if you take the indictment as stated in the indictment, assume everything in the indictment is true, that doesn't meet the elements of this crime and therefore it should be dismissed.

[00:37:24]>> Yeah, I think that's the tactic you'd have to take because you take the extreme of the spectrum. Just so you note that what's Brett's saying is you would stipulate just for the purposes of motion to dismiss. That's not what you're going to argue if this goes to this, you know, trial. Of course, there's all the subjectiveness and the what does 86 did he mean that? No, he meant like get him out of office. This is ridiculous. You know, all of those things, those arguments would come in at trial. But for purposes, because we want remember bad facts make bad law or good law in this case. I guess you want that because you want to cut their argument off at the knees. Okay, let's say it's exactly what you say. Even if you could prove at trial, which you're going to have a really hard time showing that the reasonable person saw this as an actual threat. Even if that's the case, it doesn't meet the standard as applied because of the First Amendment. And I think they'd have to win that. I think the fourth circuit would also with the makeup of the court would uphold that if the motion to dismiss is denied that they would overturn it.

[00:38:27]>> Okay. So that ends our discussion of law. I have lots of thoughts. Yeah.

[00:38:30]>> On this I wonder if you have lots of thoughts as well.

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[00:39:12]>> [music] >> Okay, first of all, let's just be frank.

[00:39:18]This is a [ __ ] prosecution. It is absolute crap. It is the worst indictment I have ever seen returned. It is an embarrassment for the Department of Justice to have done this. It is a disgrace for the A USA who signed this and the US attorney who signed this. It is disgusting that they are doing this.

[00:39:39]And I say this as someone who does not like James Comey and has personal reasons for not liking James Comey. I have no love for him whatsoever. James Comey may very well have committed crimes for which he should be indicted.

[00:39:53]This is not one of them. This is an affront to the First Amendment. It is disgusting that they would do this. And I will say this, I have seen people say things like, "Well, the process is the punishment." and I hope he suffers and it's okay if they don't think there's a real crime here. No, that is the most anti-American thing I have ever heard anyone say. We do not use the courts and the law to punish people we do not like for political reasons. And I do not care if people did that to President Trump four years ago. Completely irrelevant.

[00:40:31]As someone who was in the Department of Justice during those four years when President Biden was president, I have heard people from the Department of Justice say things that I found to be deeply disturbing, to be unamerican, to make me believe there were political prosecutions going on at that time. That is completely irrelevant. It does not matter. I do not let my children say they're doing something because someone else did something bad to them. And that is beneath the Department of Justice and is beneath prosecutors. And it also doesn't matter if he did something else bad. This is not >> that's not how we prosecute people. No, >> that's not how we pro we say this all the time. Remember 404b. We don't get to convict someone because they're just a bad dude or probably did something bad in the past. That is absolutely actually what the justice system prohibits.

[00:41:26]>> And let me say this, this is not Al Capone in taxes. This is Al Capone if Al Capone paid his taxes and the government was like, "Well, we're going to charge him with tax evasion anyway." That's the equivalent of this. This is silly. It's absurd. No one actually believes this is a true threat. And let me just say this.

[00:41:44]the acting attorney general went on television and because this is such an absurd indictment and because they cannot defend it on its plain language, he says, "Oh, well, there's other things you don't know about." We did 11 months of investigation into this. Let me just say this. If in those 11 months of an investigation, they had discovered that James Comey is part of some deep cover plot to assassinate the president and this somehow was part of that plot. You know what they would have done?

[00:42:17]>> Arrested him immediately on a complaint.

[00:42:20]>> There's that. They would have arrested him on a complaint and then after they arrested him, they would have moved to detain him. And during the detention hearing, they would have laid out all the things that James Comey did where he proved that he actually intended to kill the president. Instead, James Comey, who just got indicted for threatening to kill the president, is walking free today because they didn't make a detention argument. Now, can you honestly tell me if you are listening to this that if they had information that James Comey was some sort of assassin in hiding that they wouldn't have laid all of that out at a detention hearing? What better place to do it than there? And yet they didn't. The whole thing is a joke.

[00:43:07]>> Not moving for detention on such a serious crime tells you all you need to know. Absolutely agree. They may have even moved for detention, but they didn't actually put on an argument for it. I can't remember.

[00:43:18]>> Which is funny because the opposite happened, right? With the White House correspondent shooter, they moved for detention. So that guy, if you missed the facts of it, he charged. There was a White House correspondent dinner, which is like a big dinner, and the president was at it. He was in the ballroom. And the guy, Cole Allen, you see it on security camera. He rushes through security, points his gun at a law enforcement officer, shoots, and keeps running. So, he actually literally holds up like a long gun, shoots it, and [snorts] he's immediately detained. They bring charges, murder, something, attempted murder. I don't remember what they charge him with. Very serious. They go to court, DOJ, same Department of Justice. They ask for detention and at first it's contested but then you know once the evidence comes out the defense is like no we don't contest it and do you know what DOJ did Brett did you follow this cuz this was super niche.

[00:44:11]>> No >> DOJ said but judge actually we'd still like to put on evidence as to the dangerousness of him. Why? By the way it's because they want to show how bad this dude is to show basically how oh my gosh he was going to do this all these people are trying to kill. And I think it actually has to do with this case. I think it actually has to do with the James Comey case because even though they're saying they can't say it's incitement to violence, of course, part of the case is going to be but there were all these attempts on this life.

[00:44:40]And so the fact that they asked for detention when it's no longer contested, you don't have to have a hearing because it's an evidentiary hearing. It's not contested. Why do you have to put on evidence? We already agreed that he should be detained. They were like, "No, no, no. We'd really like to show you why he should be detained." And the judge was like, "Nonsense. No, I don't need to do this and doesn't let DOJ do that. So, if they had asked, and I thought they didn't ask for detention here. So, if they had asked for detention, they didn't put on anything.

[00:45:05]>> I mean, they allowed him to self-surrender, so I doubt they did.

[00:45:08]>> Yeah, exactly. We We let people self-surrender when we know that we don't have to send a swatch.

[00:45:12]>> It's like a white collar case.

[00:45:14]>> Yeah, exactly. But we're talking about, you know, making a threat on the president's life here. This is absolutely not seeking justice. This is not, and we're talking specifically about federal prosecutors here. This is not what you take your oath to do. I do not believe in political prosecution. I don't care who did it. I also agree.

[00:45:33]There's a lot of questionable things that he's done in the past that have nothing to do with this case. And I don't know if you think that he's done something else, do your work.

[00:45:42]Investigate a real case. See if you can put together an indictment. And if you can't, your duty and your oath as a prosecutor is you don't bring the case.

[00:45:51]This makes a mockery of the justice system. It makes a mockery of the Department of Justice. And we'll probably both be black balled for whatever. I don't care. Like, I would never sign on to this indictment.

[00:46:03]And it it makes a complete sideshow of, by the way, real serious attempts on the president's life.

[00:46:09]>> Exactly.

[00:46:10]>> Which is very real because that we should all be worried. I don't care what side of the aisle you're on. We should all be worried when anyone thinks the answer is to turn to violence against the president whether you voted for the president or not. So that is a very real thing and also a discussion that we cannot have because of this joke of an indictment against Comey.

[00:46:35]>> And I just want to reiterate and we've talked about this many times. Political violence is awful and it's terrible particularly in a democracy. If you want to have a representative democracy, you can't have people murdering people for what they say or because they got elected. That is the death of democracy.

[00:46:55]You know, if you look back to the turn to the 1900s with the anarchist movement and people getting assassinated all the time. I mean, just how absolutely corrosive that kind of thing is. And it's something we need to turn away from and we need to reject wholesale. But as Alice said, this is making a mockery of that. This is trivializing that. Acting like this is a threat to the president only makes it harder to make that point because it just it makes everything even assassinations are now political. Right?

[00:47:28]Even threats to the president are now political.

[00:47:31]>> Like a political assassination when it's really talking about someone shooting a gun and actually trying to end someone's life, it's just an assassination, right?

[00:47:38]And I say those of you who know my like origin story know just how heated I get about this because this makes a complete mockery of people who've really given their lives for democracy, right? Like I only exist here having this podcast with Brett because my grandfather was the target of literal political assassination. like they were coming to shoot him in the middle of the head in the middle of the night with my grandmother who was one at the time and he got wind of it and fled overnight to Taiwan and had he not fled that night if he had gotten the message 2 hours later he would be dead and so would my grandmother and I would not be here. So if we want to talk about real threats and what happens when you don't no longer use your vote but use violence.

[00:48:24]Yeah, that's a very serious discussion and it's actually like a talk I give all the time to high schoolers all the time about the rule of law. You guys know we believe in the rule of law and this corrods the very rule of law that this department of justice by the way is always saying that it's trying to uphold. I don't care if they played by the same playbook. Uh-uh. That's not what we do. There's no such thing as political payback. There's no, you don't use the justice system as a weapon because there will be no justice system the next time around.

[00:48:59]>> And those of you who celebrate this because you don't like Comey, just know there will come a time, and it may not be that far away, when people you don't like are in power. And the thing that will keep the people that you do like from being pulled in front of grand juries and being indicted and having the process be the punishment will be the ethics of the people who take over because they decide not to do any kind of political vengeance. Good luck with that. Usually when you establish a president, the next people who take over, they run with that president. So I can only imagine what's going to happen with the next administration. And I don't think it is going to be particularly good for America or democracy or for the people who are behind this. And let me just say this to the acting attorney general who likes to act as though well this is fine because the career FBI agents and the career attorneys were the ones who brought this. They brought it because you threatened to fire them because that is the kind of tactics you use to force people to do things that they shouldn't be doing. You threaten to fire them. And so, yeah, a lot of career people choose their career over doing what they should do, which is resign and leave. They do things like this. And that's what you saw here. And if you look at the Eastern District of North Carolina, what you'll find is the people who were involved in this investigation and this prosecution, many of them did resign. And it took a while to find somebody who was willing to sign this indictment. And it's a disgrace to the Department of Justice.

[00:50:42]It's a disgrace to everything it stands for and the people responsible for it should be ashamed and one day you will face consequences for the things you've done. That is what I believe when it comes to this. I am as angry about this as I have ever been about anything. And we have talked about a lot of controversial things that have happened and I think a lot of them are debatable.

[00:51:07]They're difficult questions. They're constitutional questions. I mean, you know, when we talked about the Don Lemon indictment, that's a tough call. There are great arguments on both sides of that. This is a purely political prosecution that should never happen in the United States of America, but it's happening now and people should be angry about it.

[00:51:29]>> And I hope the trial court does the right thing, dismisses the case and dismiss it >> and the fourth circuit just, you know, actually write a fiery opinion affirming. And then I hope the Supreme Court writes a fiery opinion affirming as well.

[00:51:42]>> No one should have to suffer through a trial for this.

[00:51:45]>> Absolutely. There should not be a trial.

[00:51:46]This should absolutely be dismissed. But I think that there should be long opinions written by every court by the trial court by the fourth circuit and the Supreme Court about this and blasting the Department of Justice for abusing its power in this way.

[00:51:58]>> And this will do lasting damage to prosecutions because it really should be hard to dismiss an indictment. You know, we don't want to clutter the justice system with motions to dismiss an indictment early in the process when you got a grand jury. That's the whole point of trial. But the thing is that depends on prosecutors exercising their discretion not to bring cases like this.

[00:52:29]This is the kind of case that no prosecutor should ever have brought and typically wouldn't bring. The only reason they brought this was because they were under incredible pressure to do so. Outside pressure to do so. No one no one in that office with the exception possibly of the politically appointed US attorney. He I have no comment on him would have thought this is a good indictment to bring. There's no way. You know, I don't know how far down they had to go and I don't know how much threatening they had to do to get someone to actually sign this indictment. It's just a disgrace. It's an absolute disgrace and it undermines everything else the department is doing.

[00:53:11]And the department may be doing all sorts of really great things, controversial things that need to be done, things that are controversial yet just. You need the credibility to do things that are hard. That's what you need. And when you waste that credibility on crap like this, all you do is undermine your more important mission.

[00:53:33]>> Amen. I don't think there needs to be more said on that because this is um Yeah, >> it's a good thing I'm in private practice now. [laughter] >> It's a good thing they may still come 86 US.

[00:53:46]>> Yeah. [gasps] >> No, this is You should be outraged. We should be outraged. Now, let me say this. You don't hear us get outraged a lot for good reason. I do think the use of outrage is overblown in today's society. Everything is rage bait, right?

[00:54:04]We are not trying to be rage bait. We are justifiably inflamed because we care about justice. We care about the justice system. I believe in the rule of law and this is an assault on it. So I think this is also my caution is to save your fury. Like don't get furious about everything you see like in true crime or on the news. Be furious about the right things. And this is the thing to be furious about cuz kind of it's kind of like when you cry wolf. If you're furious about everything, no one's going to actually listen. This should have alarm bells on it. And sometimes I think the people who want to either support this administration or are like gungho for this DOJ cuz they are doing some really great things are trying to defend this when you shouldn't be because you're like, well, I don't know.

[00:54:48]Everyone always gets mad about things that they do, so maybe I don't trust my gut here. Trust your gut. Raise alarm bells on the right thing. This is the alarm bell to ring here.

[00:54:56]>> Yes. And Alice is 100% right. I mean, the constant outrage about everything and and that's the other side of this.

[00:55:03]When people get outraged about everything and everything is a crisis and everything is the worst thing ever.

[00:55:10]When you have an actual example of a really bad thing, it gets lost in the noise. And I think we're seeing that a little bit here. And I get it. In a lot of ways, this is silly. This is stupid.

[00:55:21]They indicted a dude over seashells. We can all laugh at that. I get that and nobody likes Comey, so we can laugh at him, too. But just appreciate what this means in the grand scheme of things. I mean, this is the Department of Justice using the ultimate power it has, criminal indictments >> against a private citizen. He is no longer the director of the FBI, [laughter] >> right? And hasn't been for years.

[00:55:51]>> Five years. Like, >> I don't know. This is the kind of thing to get fired up about. I in my opinion because it goes against everything that we talk about, everything this country stands for, everything the Department of Justice stands for, everything that justice writ large stands for. And yeah, I hope the courts are brave here and take the extraordinary step because it is an extraordinary step of dismissing this case before it ever gets to a trial. This man should not have to sit through a trial on this because frankly if they have a trial it should never go to a jury. The judge should enter judgment of a quiddle at the close of the state's evidence. That's what should happen here.

[00:56:35]>> A directed verdict that we always tell you should be raised.

[00:56:38]>> There's literally no evidence that could prove this case. Even if you proved that Comey was some sort of psychopath who wanted to kill the president. No reasonable person would take 8647 as a threat to kill the president. It's absurd. Even if subjectively he believed that, you wouldn't take it that way.

[00:57:01]There's no one who would take it that way.

[00:57:03]>> And in fact, the fact that he put it on Instagram, it wasn't some secret signal threat where he sent it to like the top 20 assassins in America, >> right? The fact that it literally says cool shell formation.

[00:57:14]>> Cool shells. Cool shells down the beach, man. That was so cool. And then the idiots. Okay, to make matters worse, there's a forfeite provision in this.

[00:57:24]>> What are they forfeiting? The seashells?

[00:57:25]Tell me it's the seashells.

[00:57:26]>> I know. I wish it was the sea shells.

[00:57:28]No, no, it's worse than that. Their theory is, think about this for a second.

[00:57:32]>> That it was to sell his book.

[00:57:34]>> Exactly.

[00:57:35]>> Right. That is, I was mad before, but I forgot about the forfeiture proceeding. Oh, it's like, okay, >> by the way, if it was, then I would say that's even more First Amendment.

[00:57:48]>> Exactly.

[00:57:48]>> What% first amendment?

[00:57:50]>> Absolutely innocent.

[00:57:51]>> If the whole point was to sell his book, then guess what it was?

[00:57:54]>> No subjective intended. No true threat.

[00:57:56]>> It wasn't a true threat, you morons. You absolute idiots. It wasn't a true threat. If he's trying to sell his book, >> I was mad before, but I forgot about the forfeite provision. And that makes even more.

[00:58:08]>> Incredible stupidity. I don't know. Like stupid things make me angry.

[00:58:13]>> I don't know. Like maybe maybe they need to get the room of requirement, which apparently is an echo chamber of like stupidity, but stop with your yes man and get some people in there who tell you and stand up to you. Well, they did.

[00:58:24]They and then they were forced to leave because they had to quit and resign. I don't know. When everyone around you says you're an idiot, maybe listen to them.

[00:58:31]>> And look, there's a reason so many lawyers have quit this department. And it's not because they're hardcore leftist and opposed the president. That ain't why they're gone. Okay? Like this whole thing is just a microcosm of the problem with this Department of Justice.

[00:58:48]>> Well, it better stop before we say something that, you know, might get us in trouble.

[00:58:53]>> Just I don't care.

[00:58:54]>> I don't want to be indicted for saying something that is against the regime. I mean, that would be >> I mean, if if [laughter] 8647 as cool seashells can get you an indictment, imagine this hourong podcast.

[00:59:06]>> I [laughter] know. Exactly.

[00:59:07]>> All right, guys. as well. As always, we try to break down what you see in the news, not give you just the surface level rage bait out there, but to give you real information about what is in these indictments. Read the indictment for yourself. Read the code. This is your justice system if you live in America. But the rest of the world, by the way, we're supposed to be the shining beacon on the hill of what democracy looks like, what rule of law looks like. So, this should matter to you whether you live in the United States or not. Go read it for yourselves because the justice system is supposed to be for you. and let us know what you think. If you disagree with us, I'd love to hear. If you're even more outraged, also would love to hear from you. But as always, you can let us know what you think and what you want us to talk about. Email us at [email protected].

[00:59:51]You can find us on all the social medias, which also is the medium by which this threat was transmitted. So, be careful what you transmit there. We are on all social medias at prosecutors pod. Any last words, Brett? I shouldn't really say that cuz we might go on for another hour, but any last words? This is why you should follow us on Twitter because you follow us on Twitter. This is no surprise. I've been tweeting about this a lot. So [laughter] follow us on Twitter at prosecutorpod.

[01:00:16]>> You get the breaking news.

[01:00:18]>> You do get the breaking news. Well guys, it has been a very riveting discussion.

[01:00:25]And like we always say, go read it for yourself. [music] Don't take our word for it. Until next time, I'm Alice >> and I'm Brett >> and this is [music] the prosecutor's legal briefs. Heat. Heat.

[01:00:38][music] [music] [music] >> [music] >> Let me check my sound. Do I need to turn this up? Hold up.

[01:01:11]>> You know, if we were hard workers like this, we could release two episodes a week. [laughter] >> We are hard workers. Okay. How's [music] that sound? That sounds better. Okay.

[01:01:26]Um, >> yes. [music] This is This is less depressing, I would say.

[01:01:33]>> Yeah, it's less depressing. I mean, I guess it depends on >> depends who you are.

[01:01:38]>> Are you depressed? Are you angry? I don't know. It depends on who you are.

[01:01:42]>> The facts are less depressing. Cuz >> the facts are stupid.

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