Thread by @JayTownAlabama

🚨COMEY🚨

Lots of Google Law School alumnae citing the Counterman case claiming the case against Comey will be dismissed.

IT WON'T!

The same alums say his post could only be taken as a joke and acquittal is 100% inevitable.

IT ISN'T!

Here's why:

🧵1/

It’s true that nearly all speech is protected by the First Amendment. And Courts are reluctant to affirm laws that criminalize speech because it chills free expression.

I agree with that.

2/

That said, SCOTUS has upheld statutes (to include those with which Comey is charged) that penalize speech/expression.

-Obscenity (Miller v Cal.)

-Defamation (NYTimes vs Sullivan)

-Incitement (Brandenburg)

-True Threats (Counterman)

Comey's charges regard "true threats".
3/

A NC grand jury found probable cause that Comey violated 18 USC 871 & 875. The two are very similar in terms of the misconduct (in this particular case) and elements.

A “Counterman” or “true threats” analysis is the same for both statutes, so I will only analyze 871.
4/
supremecourt.gov/opinions/22pdf…

18 USC 871 proscribes against, in relevant part:

Whoever knowingly and willfully...threat[ens] to take the life of...or to inflict bodily harm upon the President of the United States...shall be...imprisoned not more than five years, or both.

5/
law.cornell.edu/uscode/text/18…

Comey's indictment properly tracks the same language in 871 in that:

- He posted "8647" on Instagram;
- A reasonable person would interpret the post as a threat to the President.

The govt must prove these circumstances beyond a reasonable doubt.
6/

justice.gov/opa/media/1438…

But it's more complicated than that!

While the proofs of the actual post will not even be contested, the remainder of the elements DOJ must prove are thorny. Those thorns come in the form of a "true threats" analysis stemming from SCOTUS case law, specifically Counterman.

7/

Counterman's protections against chilling free speech by criminalizing "true threats" adds another element to 871: the subjective intent of the defendant.

SCOTUS created a reckless standard, generally defined as " a conscious disregard of a risk", for true threats analyses.
8/

@TheJusticeDept's "Justice Manual" professes caution when pursuing prosecution under 18 USC 871 and notes the delicate distinction between free speech vs true threats.

Hyperbole or political jest is NOT a threat.

However, true threats are NOT protected speech.

9/

The Counterman Court's reckless standard for true threats, which is a subjective standard. In other words, the defendant had to either know the communication was a threat or recklessly disregard that it would be interpreted as a threat by others.

10/

The Counterman Court also made it clear that the defendant does not have to intend the communication as a threat or even know that the communication would be reasonably interpreted as a threat.

Defendants need only consciously disregard the risk that it would be.

11/

Many think (without having seen any evidence, mind you) Comey never intended to convey a threat. Under the Counterman standard, such an analysis is irrelevant.

The legal standard is only what the former FBI Director's post may have reasonably conveyed to others.

12/

It is important to note that Comey's post could have "reasonably conveyed to others" many things.

Could be reasonably considered a threat.

Could be reasonably considered a desire for impeachment.

Could be reasonably considered mere political opposition to Trump.

But...
13/

If all are reasonable interpretations of the post, then ALL ARE REASONABLE INTERPRETATIONS OF THE POST.

The threat interpretation too!

There is nothing in the law at all that suggests that there can only be one reasonable interpretation of Comey's post.

14/

This is a HUGE problem for Comey!

Counterman tells us that Comey's intended meaning in the post does NOT matter.

"The existence of a threat depends...on what the statement conveys to the person on the other end."

Did Comey know others might misconstrue his post?🤔

15/

DOJ will have to prove that Comey disregarded the risk that some people could reasonably interpret his post as a threat.

Remember, his wife got several concerned calls after the post.

Media exploded with criticism.

President Trump took it as a call for his assassination.

Many were furious at Comey.

Are we all just UNREASONABLE??
16/
nytimes.com/2025/05/16/us/…

Oh, that's right. It's just a restaurant term. Means "remove" or "get rid of". Everyone in media and online suddenly bragging about their experience in the food service industry are actually doing a great job making DOJ's case!

"86 the pickles" means "get rid of the pickles".

Comey's post actually meant "get rid of Trump". Is it totally unreasonable to think "get rid of" is a threat? Is there really an honest disagreement here?

Remember, multiple interpretations can all be reasonable!!
17/

If Comey was aware (or should have been) that there was ANY possible interpretation by reasonable people that his post would constitute a threat, but posted anyway, then that is a reckless disregard of that threat.

This then passes the Counterman "true threats" analysis. The 1A concerns have been satisfied under the law.

18/

I've already weaved in the objective standard in 871 throughout this thread. Namely that reasonable people could have different interpretations of Comey's post, one of which is that it was a threat to the President.

This is a question for the jury (not a judge).
19/

And we have yet to see DOJ's evidence. @DAGToddBlanche referenced a "taint team" in his presser, which separates emails/texts from Comey to others, excluding anything privileged.

This likely means DOJ has emails and texts from Comey!

Could they admit that he knew others would take his post as a threat?

Is it so far-fetched that Comey could have said something to the effect of "I knew Trump supporters would take it that way".

If he "knew" then he also consciously disregarded what he knew and posted anyway.

Again, we haven't seen the evidence but if such a missive from Comey exists...that's likely the ballgame folks!

20/

Finally, for those of you who believe that this case will be thrown out on 1A grounds pretrial please understand that there is virtually NO pretrial procedural mechanism for this to happen!

Any "true threat" analysis will first be conducted at the conclusion of the govt's case...at the earliest. It truly is a jury question and the judge can disagree then. A pretrial judgment of the evidence in a 1A context would be irregular indeed.

I leave it to @shipwreckedcrew to fulsomely explain this to you.

21/
x.com/shipwreckedcre…

But to those in media or legal analysists who have called this case against Comey "frivolous" (looking at you @Judgenap) or insisted that it would be dismissed 100% (@eliehonig, @JonathanTurley), I think it may be worth reading the law again...or perhaps for the first time!
22/

In sum, this isn't a case about seashells.

AT BEST, the former Director of the FBI posted a photo that means to just about everyone "get rid of Trump". Whether "get rid of" could be interpreted as a threat will be up to a jury.

...BUT IT WILL GET TO A JURY!

Fin

👆
@BonginoReport @dbongino @NEWSMAX @FDRLST @shipwreckedcrew @bhweingarten @MZHemingway @TheJusticeDept @_WilliamsonBen @DAGToddBlanche @USAO_EDNC @mrddmia @willchamberlain