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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: The Jauntice Department has indicted former FBI director James Comy

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Speaker 2: for the second time in less than a year. This time,

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Speaker 2: Comy has been indicted over an Instagram post from May

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Speaker 2: of last year of seashells arranged on a beach, which

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Speaker 2: the indictment claims a reasonable recipient who's familiar with the

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Speaker 2: circumstances would interpret as a serious expression of an intent

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Speaker 2: to do harm to the President of the United States.

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Speaker 2: Comy is charged with one count of knowingly and willfully

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Speaker 2: threatening the life of the president and one count of

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Speaker 2: making an interstate threat to kill the president. Here's Acting

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Speaker 2: Attorney General Todd blanche.

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Speaker 1: So, I think it's fair to say that threatening the

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Speaker 1: life of anybody is dangerous and potentially a crime. Threatening

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Speaker 1: the life of the President of the United States will

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Speaker 1: never be tolerated by the Department of Justice.

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Speaker 2: Komy deleted the post shortly after it was made, saying

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Speaker 2: he'd assume that the numbers reflected a political message, not

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Speaker 2: a call to violence. Here's what he told MSNBC at

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Speaker 2: the time.

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Speaker 3: Well, I regret the distraction and the controversy around it.

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Speaker 3: But again, it's hard to have regret about something that,

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Speaker 3: even in hindsight, looks to me to be totally innocent

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Speaker 3: for the reasons you said. But yeah, I didn't have

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Speaker 3: a gut check. In the Trump era, I've been investigated

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Speaker 3: a lot, audited a lot, and so it's not my

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Speaker 3: first rodeo. I'm in some strange way the relationship he

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Speaker 3: can't get over.

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Speaker 2: The Justice Department's last indictment of Comy was on charges

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Speaker 2: that he lied to an obstructed Congress relating to testimony

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Speaker 2: he gave in twenty twenty about whether he had authorized

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Speaker 2: inside information about an investigation to be provided to a journalist.

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Speaker 2: He denied any wrongdoing, and the case was dismissed in

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Speaker 2: late November after a judge concluded that the prosecutor who

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Speaker 2: brought the indictment was illegally appointed. Joining me is former

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Speaker 2: federal prosecutor Robert Mintz, a partner maccarter and English Bob.

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Speaker 2: Is The first question going to be what those numbers mean?

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Speaker 2: Dictionary Youse says that it's slang eighty six means to

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Speaker 2: throw out, to get rid of, or to refuse service.

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Speaker 2: Comy said at the time that he didn't know it

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Speaker 2: had those implications, and when he found out, he deleted

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Speaker 2: the post. So I mean, is the first question what

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Speaker 2: that really means?

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Speaker 4: No, that's exactly right. I think you have to go

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Speaker 4: back and take a look at the original derivation of

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Speaker 4: the term eighty six, And apparently there are some differing

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Speaker 4: opinions as to where it came from, but the prevailing

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Speaker 4: view is that it started somehow in the restaurant business,

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Speaker 4: and it really had to do with the fact that

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Speaker 4: an item on the menu is no longer available or

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Speaker 4: that or that a customer at a restaurant was going

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Speaker 4: to be asked to leave the restaurant. And it's only

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Speaker 4: recently that it's come up in political terms in a

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Speaker 4: political context. One of those that one of those most

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Speaker 4: one of the most prominent use of the term eighty

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Speaker 4: six in the last several years was back in February

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Speaker 4: of twenty twenty four when at the time, Representative Matt

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Speaker 4: Gates of Florida posted we've now eighty six McCarthy McDaniel McConnell. Sorry,

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Speaker 4: we've now eighty six McCarthy McDaniel McConnell, which was apparently

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Speaker 4: a reference to Kevin McCarthy losing his House speakership, Republican

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Speaker 4: National Committee chair Ron McDaniel leaving her role, and Senator

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Speaker 4: Mick McConnell announcing he would step down as Majority leader.

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Speaker 4: So we've seen the term eighty six used in a

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Speaker 4: political context, sometimes meaning to get rid of a political leader.

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Speaker 4: Here the government apparently is taking here, the government apparently

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Speaker 4: is going to try to convince a jury ultimately that

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Speaker 4: this was a statement by former Director Komy to incite

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Speaker 4: violence against the president. And when he said eighty six

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Speaker 4: forty seven he was trying to invoke he was he

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Speaker 4: was arguing that somebody should should he was arguing that

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Speaker 4: the president should be assassinated. That's really the heart of

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Speaker 4: what this prosecution will ultimately be about.

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Speaker 2: This was investigated, and in fact Comy was interviewed about

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Speaker 2: this a year ago and nothing was done, and now

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Speaker 2: all of a sudden they're indicting him on this.

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Speaker 4: Well, that does raise an interesting issue because I think

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Speaker 4: that we'll see among the defenses that mister Comy's lawyers

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Speaker 4: will raise here is number one. As you mentioned a

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Speaker 4: minute ago, the dictionary meaning of eighty six suggests that

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Speaker 4: it means to get rid of or to refuseervis or

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Speaker 4: to throw out, and so it's not at all clear

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Speaker 4: that mister Comy intended that to be a threat. In fact,

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Speaker 4: the statement that he made at the time that this

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Speaker 4: became an issue, and at the time he was interviewed

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Speaker 4: by the FBI, was that he had no idea that

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Speaker 4: it was a threat to violence. He viewed it as

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Speaker 4: a political message, and as soon as he understood that

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Speaker 4: some people might interpret it as a threat of violence,

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Speaker 4: he immediately took it down. So the defense is going

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Speaker 4: to argue that this is really a First Amendment issue.

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Speaker 4: They're going to say that there's no criminal intent here,

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Speaker 4: because it's important to remember that in order for the

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Speaker 4: prosecution to prove their case, it focuses solely on the

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Speaker 4: mindset of the defendant. So, in other words, they have

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Speaker 4: to prove that the defendant here, mister Komi, was knowingly

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Speaker 4: and wilfully intending to threaten the president with violence. Here,

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Speaker 4: the standard is not what somebody who heard the message

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Speaker 4: may have interpreted to mean. It's focuses solely on what

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Speaker 4: the speaker, in this case, mister Comy intended when he

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Speaker 4: wrote those words.

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Speaker 2: And will we see in any defense by Comy claims

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Speaker 2: of malicious prosecution. It's only been five months since the

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Speaker 2: last indictment against him for something else was dismissed by

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Speaker 2: a judge.

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Speaker 4: I think that will certainly be among the defenses and

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Speaker 4: the themes of any defense if this case ever were

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Speaker 4: to go to trial. Stacube at eighteen USC. Eight seventy

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Speaker 4: one A, which criminalizes the act of knowingly and wilfully

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Speaker 4: making any threat to take the life of, to kidnap,

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Speaker 4: or to inflict bodily harm upon the President of the

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Speaker 4: United States. There's also another statute, which is a slightly

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Speaker 4: broader prohibition, which criminalizes threats through interstate communications. But these

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Speaker 4: all turn on the prosecution's requirement to prove beyond a

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Speaker 4: reasonable doubt that these comments were a serious expression conveying

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Speaker 4: that a speaker means to commit an act of unlawful violence.

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Speaker 4: And the key to that, based on the cases that

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Speaker 4: have interpreted this language, is that these threats need to

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Speaker 4: be detailed and they need to be imminent. So these

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Speaker 4: cases have come up in constitutional cases, which are First

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Speaker 4: Amendment cases where the courts have looked at the constitutional

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Speaker 4: guarantee of free speech and free press and basically held

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Speaker 4: that you cannot create a law that forbids or prescribes

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Speaker 4: the advocacy of the use of force or even the

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Speaker 4: violation of the law, except where such advocacy is directed

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Speaker 4: to inciting or producing imminent lawless action and is likely

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Speaker 4: to incite or produce that action. So the prosecution here

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Speaker 4: would have to show that these threats were real, that

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Speaker 4: they were imminent, and that they were specifically intended to

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Speaker 4: incite violence, and that's going to be an uphill battle.

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Speaker 4: Related to that is the fact that the defense will

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Speaker 4: likely argue that this is a selective form of prosecution

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Speaker 4: and that there's a political motive here, because they will

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Speaker 4: try to argue that the Justice Department already pursued a

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Speaker 4: case against mister Comy less than a year ago, which

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Speaker 4: was ultimately dismissed by a judge based upon the finding

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Speaker 4: that the prosecutor at the time was not properly appointed.

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Speaker 4: So they're going to try to argue that this is

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Speaker 4: just another attempt by the Trump administration to go after

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Speaker 4: one of mister Trump's perceived enemies, James Comy, and that

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Speaker 4: there's really no merit to this case, that this case

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Speaker 4: should not have been brought in the first place, and

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Speaker 4: that at best, this is a politically veiled attempt to

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Speaker 4: try to go after mister Comy after having failed with

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Speaker 4: the other prosecution.

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Speaker 2: Reportedly, the Justice Department is still looking into indicting New

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Speaker 2: York Attorney General Letitia James after their initial indictment failed.

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Speaker 2: Do judges have this in mind when they're considering the indictment,

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Speaker 2: even if it's not brought up in the papers, I mean,

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Speaker 2: they're aware that the Trump administration has set out to

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Speaker 2: indict his political enemies because he's asked them to.

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Speaker 4: Well, that's certainly I think something that you'll see the

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Speaker 4: defense argue. I think most judges will be constrained to

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Speaker 4: look at the face of the indictment itself and try

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Speaker 4: to determine whether the government has probable cause to proceed

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Speaker 4: with the case. As you know, it's very very difficult

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Speaker 4: or a defense lawyer to get a criminal case dismissed

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Speaker 4: prior to going to trial. It's just something that prosecutors

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Speaker 4: generally prevail on because again, they only have to go

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Speaker 4: before a grand jury and establish that there's probable cause

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Speaker 4: that a crime has been committed, and probable cause that

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Speaker 4: the defendant who's named the indictment has committed that crime

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Speaker 4: that is a much lower bar than beyond a reasonable doubt,

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Speaker 4: which is the standard that they have to meet in

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Speaker 4: order to gain a conviction at the end of a trial. Well, so,

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Speaker 4: the difficult situation that defense lawyers find themselves in is

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Speaker 4: even if a case is inadequate in terms of proving

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Speaker 4: the evidence beyond a reasonable doubt, prosecutors will often get

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Speaker 4: that case in front of a jury unless a judge

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Speaker 4: looks at the evidence and makes the determination that no

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Speaker 4: reasonable jury could find there were sufficient evidence to convict,

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Speaker 4: and in that case, judges will step in and dismiss

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Speaker 4: cases before they go before a jury, before there's even

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Speaker 4: a trial.

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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 2: this conversation with former federal prosecutor Robert Mints of McCarter

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Speaker 2: and English what constitutes a true threat under the statute charged.

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Speaker 2: I'm June Grosso and you're listening to Bloomberg. Former FBI

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Speaker 2: Director James Comey was indicted again today, this time over

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Speaker 2: a social media photo of seashells arranged on a beach

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Speaker 2: that Justice Department officials say constituted a threat against President

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Speaker 2: Donald Trump. Here's Acting Attorney General Todd blanche At a

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Speaker 2: press conference following the indictment.

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Speaker 1: While this case is unique and this indictment stands out

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Speaker 1: because of the name of the defendant, his alleged conduct

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Speaker 1: is the same kind of conduct that we will never

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Speaker 1: tolerate and that we will always investigate and regularly prosecute.

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Speaker 2: The indictment, filed in eastern North Carolina, charges Comy with

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Speaker 2: two felony counts, each punishable by up to five years

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Speaker 2: in prison. The Justice Department indicted Comy the first time

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Speaker 2: around last September on charges that he lied to and

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Speaker 2: obstructed Congress. He denied any wrongdoing, and that case was

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Speaker 2: subsequently dismissed. The dismissal was just five months ago. I've

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Speaker 2: been talking to former federal prosecutor Robert Mintz, a partner

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Speaker 2: maccarter in English, Bob, this indictment came out of a

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Speaker 2: North Carolina grand jury. I'm wondering if it was a

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Speaker 2: DC grand jury, if they would have returned the indictment,

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Speaker 2: considering that the Justice Department has been having problems getting

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Speaker 2: indictments from DC grand juries.

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Speaker 4: Well, there certainly has been a lot reported in the media,

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Speaker 4: and people are generally aware of the fact that there

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Speaker 4: have been allegations of the Department of Justice becoming politicized.

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Speaker 4: In other words, prosecutions that are being brought not based

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Speaker 4: on the decision of career prosecutors, based on the facts

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Speaker 4: and based on the law, but there are directives coming

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Speaker 4: from the White House and other agencies in the federal

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Speaker 4: government urging the Department of Justice to bring these cases.

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Speaker 4: Whether or not that's correct or improper, the reality is

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Speaker 4: that it does create in the minds of the average citizen.

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Speaker 4: These are the people who ultimately sit on these juries,

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Speaker 4: whether they be in the District of Columbia or anywhere

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Speaker 4: else in the country, it does create in their minds

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Speaker 4: question about whether these cases are being brought for political reasons.

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Speaker 4: And that's something that you're going to see any defense

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Speaker 4: lawyer in any of these cases try to raise during

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Speaker 4: the course of the trial or even before that, to

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Speaker 4: try to get the judge to dismiss the case as

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Speaker 4: a case that is brought purely for political reasons. This

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Speaker 4: is a case where I think the defense is going

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Speaker 4: to be able to make that argument because I think

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Speaker 4: just based on the fact that there is a picture

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Speaker 4: of these seashells with the number eighty six forty seven

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Speaker 4: without anything more than that, without any other spoken words

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Speaker 4: by James Comy, without any conduct by James Comy. That's

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Speaker 4: going to be a real uphill battle for prosecutors to

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Speaker 4: convince a jury that that was a threat to the

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Speaker 4: president's life and that that was an imminent threat, because again,

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Speaker 4: they have to show more than the fact that there

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Speaker 4: is a political statement, and frankly, they have to show

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Speaker 4: more than it was an attack on thequalifications or the

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Speaker 4: credibility of the president. They have to show there was

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Speaker 4: an actual imminent threat to violence. And that will be

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Speaker 4: a difficult case to show here, simply based upon the

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Speaker 4: very limited evidence that we're aware of at this time.

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Speaker 2: And Bob put this in the context of what the

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Speaker 2: Supreme Court has said about these kind of threats.

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Speaker 4: Anytime prosecutors use this statute that addresses knowing and willful

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Speaker 4: threats to take the life or to inflict harm on

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Speaker 4: the president, it always has to be viewed through the

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Speaker 4: lens of the implications against the First Amendment. And that's

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Speaker 4: why we've seen these types of cases which may appear

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Speaker 4: on their face to be simply threats against the president,

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Speaker 4: as something that could also be viewed as political speech.

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Speaker 4: An example of that occurred in the case called Wats

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Speaker 4: versus the United States, where this very statute was interpreted

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Speaker 4: in light of a strong First Amendment background, and in

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Speaker 4: that case, the protester was convicted for saying, if they

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Speaker 4: ever make me carry a rifle, the first man I

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Speaker 4: want to get in my sights is LBJB, a reference

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Speaker 4: to President Johnson. At the time, that individual was convicted,

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Speaker 4: but it made its way to the Supreme Court, where

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Speaker 4: the court said that that was political hyperbole rather than

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Speaker 4: a true threat and thus not within the prohibition of

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Speaker 4: this statute. So it's an example of just how specific

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Speaker 4: and how imminent these threats have to be and why

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Speaker 4: the courts have at least traditionally looked at this kind

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Speaker 4: of language as political language rather than a call to violence.

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Speaker 4: And in this case, I think it's going to be

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Speaker 4: an uphill battle for prosecutors to prove that this was

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Speaker 4: not political speech, that this was an actual, imminent threat

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Speaker 4: made by James Comy against the president.

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Speaker 2: It will be interesting to see whether Comy is allowed

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Speaker 2: to turn himself in as he was last time, or

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Speaker 2: whether he's actually arrested, because if there is an arrest

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Speaker 2: warrant here, as well, thanks so much, Bob. That's Robert

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Speaker 2: Mintz of McCarter and English, and that's it for this

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Speaker 2: edition of The Bloomberg Law Show. Remember you can always

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