This is Bloomberg Law with June Graasso

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

Blanch.

>> 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.

>> 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 I didn't have a gut

check. I I 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 McCarter in

English.

Bob, is the first question going to be

what those numbers mean? Dictionary use

says that its 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 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

those that uh one of those most um one

of the most prominent use of the term 86

in the last several years was back in

February of 2024

when at the when at the time

Representative Matt Gates of Florida

posted we've now 86 McCarthy McDaniel

McConnell sorry we've now 86 McCarthy

McDaniel McConnell which was apparently

a reference to Kevin McCarthy losing his

house speakerhip, Republican National

Committee Chair Ronda McDaniel leaving

her role and Senator Mitch McConnell

announcing he would step down as

majority leader. So we've seen the term

86 used in a political context sometimes

meaning to get rid of a political

leader. Here the government apparently

is taking that 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 he was he was

um he was arguing that somebody should

should um 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 USC 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're going to try to argue that this

is just another attempt by the Trump

administration to go after one of Mr.

Trump's perceived enemies, James Comey,

and that there's 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

Leticia 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 and English. What

constitutes a true threat under the

statute charged? I'm June Graasso and

you're listening to Bloomberg.

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 Blanch 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 5 months ago. I've been talking

to former federal prosecutor Robert

Mintz, a partner McCarter in English.

Bob, this indictment came out of a North

Carolina grand jury. I'm wondering if it

was a DC grand jury if they would have

returned the indictment considering that

the Justice Department has been having

problems getting indictments from DC

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 versus 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

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