The dumbest week in DOJ history
And it's only Thursday.
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You’d think we’d be running out of ways to say that the Department of Justice is a careening, catastrophic, out-of-control mess, but every day, the Trump DOJ gives us new reasons to say that it is a careening, catastrophic, out-of-control mess.
On Tuesday, the DOJ beclowned itself even more mightily than during Lindsey Halligan’s reign of incompetence as the wannabe US Attorney in the Eastern District of Virginia.
Halligan couldn’t make the first indictment against former FBI Director James Comey stick, and it got thrown out with her. But this DOJ is as resourceful as it is incompetent, so it found a way to indict Comey for something entirely different, in an entirely different jurisdiction, for the crime of … taking a picture of some seashells by the seashore in North Carolina and posting it on Instagram.
You’re forgiven if the news of this comically thin indictment overshadowed the other absolute travesty of a filing from the DOJ on Monday, the one where DOJ attorneys apparently just let President Trump write a Truth Social rant about his ballroom and filed it with the court.
But let’s get back to that Comey indictment, shall we? Go read it and come back. No, really. It will take you about 90 seconds, tops.
You’ll see that while there are two counts in the indictment, they’re for the same thing. Count 1 says Comey violated 18 U.S.C. § 871, which makes it a crime to threaten to “take the life of, to kidnap, or to inflict bodily harm upon the President of the United States.” Count 2 says Comey violated 18 U.S.C. § 875 because, in posting the picture on Insta, that counted as transmitting “communication containing any threat to kidnap any person or any threat to injure the person of another.”
It’s annoying even to have to treat this thing as legitimate, but for the purposes of argument, let’s pretend that this is an actual factual legal filing and not just an exercise of raw power on behalf of Trump and his pets at the DOJ. Would it stand up in court if we assume good faith?
Heavens, no. Come on.
Let’s run down why James Comey is not going to go to jail.
Seashell-gate
First, there’s the actual meaning of “86,” which is not “to kill,” as literally anyone who ever worked at a restaurant knows.
You might say “86 the chicken parm,” which does not, you can likely infer from context, mean you want to murder the chicken parm. Rather, it’s restaurant shorthand for an item being unavailable. You might also talk about “86-ing” a patron. There, you are also not talking about murdering one of your customers. You’re saying that the customer was thrown out and should be refused future service.
There’s no world where “86” is inherently a violent demand that someone be killed. Is it used in that context sometimes? Sure, maybe. We could ask Jack Posobiec, conservative influencer, what he meant when he posted “86 46” on X during Joe Biden’s presidency. We could phone up Jeff Bezos and ask why you can still hop on Amazon and buy any number of items that, according to the DOJ, are open and obvious threats to murder Joe Biden.
Indeed, the whole thing sure looks a lot like the DOJ is just begging for Comey to bring a motion to dismiss the indictment on the theory that he was selectively and vindictively prosecuted. Comey had just such a motion pending in his previous case when Halligan was thrown out of her job along with his indictment.
But here’s the main reason James Comey isn’t going to jail even if we were to agree that when he knew full well he calling for for violence against Trump made his ill-fated Insta post. (Remember, Comey didn’t even arrange the shells! He literally just took a picture!) Broadly, the First Amendment protects most speech, including, at least before the current incarnation of the DOJ, popping off about the president. There is no protection for “true threats,” but that is a narrow carveout.
In Watts v. United States, Robert Watts was convicted by a jury when he remarked during a protest, “I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is LBJ.”
The Supreme Court reversed the conviction, saying Watts’s remarks were “political hyperbole,” where language is “often vituperative, abusive, and inexact.” Only “true threats,” which a later Supreme Court case defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” fall outside of First Amendment protection and can form the basis for a conviction. Everything else is just free speech, baby.
Fast forward several decades. Two weeks before the 2008 election, Walter Bagdasarian hopped on a Yahoo message board and wrote: (1) “Re: Obama fk the n******, he will have a 50 cal in the head soon” and (2) “shoot the n**.” Since Barack Obama wasn’t yet president, Bagdasarian was charged under 18 U.S.C. § 879, which makes it a crime to threaten a major candidate for president.
Bagdasarian was convicted by a jury, but the Ninth Circuit reversed, saying that though his statements were “particularly repugnant because they directly encourage violence,” they still weren’t true threats because the statute “does not criminalize predictions or exhortations to others to injure or kill the President.”
Only one federal appellate court, the Fourth Circuit, which includes North Carolina and is therefore binding law here, has held that inciting someone else to harm the president could constitute a crime. But even that would still be a high bar for Blanche to clear. Such threats fall outside protected speech only if they show the speaker had “a reckless disregard for the strong likelihood that his listeners would be incited to do harm to the President.”
So, Blanche isn’t lying as such when he puffs out his chest and says, “you are not allowed to threaten the president of the United States of America.” He’s just not telling you that the line is very, very far away from posting a picture of somebody else’s seashell art on Instagram.
The DOJ would essentially have to show that by taking a picture of someone else’s beach musings, Comey intended both that Trump would understand this as an imminent threat and fear for his life, and that Comey also intended to convey he was personally preparing to injure or kill Trump or recklessly whipping his audience into a froth where the mere reading of “8647” would send them racing to kill the president.
Blanche, for all of his faults, understands that the DOJ is not going to be able to prove anything close to this, and his lack of confidence is barely concealed in his public remarks.
Meanwhile, the prosecution of the alleged WHCD shooter, Cole Allen, has also already descended into a shambles.
Here’s Blanche on Wednesday, seemingly saying that the DOJ may have charged Allen with something despite not having any evidence for it.
Buddy. The whole point of charging someone with a crime is that you have assembled enough evidence to reasonably believe they did the crime. It’s not based on vibes. But Blanche is saddled with Kash Patel’s FBI, which doesn’t seem able to find the fragment of a bullet that pierced a Secret Service agent’s vest. It’s looking increasingly clear that Allen did not fire the round and that the incident was in fact friendly fire, even if Blanche and Patel refuse to acknowledge as much publicly.
Blanche wasted no time in undertaking the extremely, shall we say, unusual step of litigating via X, posting a letter he’d dashed off to the counsel for the National Trust for Historic Preservation, the plaintiff in the ballroom case, demanding they withdraw the suit or else.
When that move did not result in the Trust dropping their lawsuit — weird, right?! — the DOJ took a different tack: let Trump write a legal filing and have three high-ranking DOJ attorneys, including Blanche, sign off on it.
That sounds overblown, but it really isn’t. Hell, it even follows the Trump conventions for capitalizing words, which is to say that they are randomly capitalized:
“The National Trust for Historic Preservation” is a beautiful name, but even their name is FAKE because when they add the words “in the United States” to the National Trust for Historic Preservation, it makes it sound like a Governmental Agency, which it is not. In fact, the United States refused to continue funding it in 2005 because they strongly disagreed with their mission and objectives. They are very bad for our Country. They stop many projects that are worthy, and hurt many others.
Even if this embarrassment weren’t written in Trump-o-Vision, none of it has anything whatsoever to do with the core issue of the ballroom case: whether Trump has to get permission from Congress.
And it isn’t just that the filing is completely out of pocket, tone-wise. There’s also no legal basis for it. There are only six cases cited, three of which are just about the procedural aspects of this type of motion. Then, there are multiple citations to Trump appointee Judge Neomi Rao’s dissent in this very case from a previous trip up to the DC Circuit, but literally every first-year law student understands that a dissent is not law.
These sorts of antics are the whole reason why the DOJ has historically been kept independent of the president. Even if the president weren’t a malevolent toddler like Trump, the DOJ isn’t there for the pursuit of personal goals. There’s a White House counsel for that sort of thing, for one, and for another, the DOJ is supposed to work for us, not the president.
Blanche, however, knows that he’s only in his current role because he’s willing to say that Trump’s desires are the only law that matters. This is what weaponization of the Justice Department actually looks like, and Blanche knows that as well.
That’s it for today
We’ll be back with more tomorrow. If you appreciate today’s PN, please do your part to keep us free by signing up for a paid subscription.
Thanks for reading, and for your support.
The indictment is a joke. “8647” is restaurant slang for cutting someone off, not a death threat. Watts and the rest of the case law make this dead on arrival. But that’s almost beside the point.
The real story is a justice system that prosecutes the innocent and protects the guilty. They’re not trying to win, they’re trying to grind him down. Years of legal fees, lawyers, hearings, stress, time he’ll never get back. That’s the punishment. The verdict is irrelevant. This is what Russia does, Hungary and Poland did this too. The point is to make people suffer.
On staying: I get the instinct to fight, but fighting on their terms is the trap. They have unlimited money and unlimited time, it’s not theirs, it’s yours.
Every dollar he spends defending himself is a dollar fed back into a system that’s already rotted through. Leaving isn’t surrender; it’s refusing to subsidize your own prosecution. If everyone with options left, the machine would have nothing to chew on.
Restaurant slang (as noted above) perhaps, but to “86” is better known as slang for tossing an unruly drunk out of a bar—one tosses, not kills. This is what power does to your brain.