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Former FBI Director Comey Indicted for Second Time · Bloomberg Law

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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
• 16:10
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• 16:24
  Speaker 2: at ten pm Wall Street Time. I'm June Grosso and
• 16:28
  Speaker 2: you're listening to Bloomberg