It bothers me so much that MAGA clogs up the courts with these absurd suits.
We need to enact a Nuisance Law, so that the parties who bring these preposterous claims can be held liable for all court costs, plus a hefty fine. Trump would end up bankrupt (again) for his record number of bad-faith lawsuits.
This is such a well-known and well-appreciated threat to our rights and freedoms that many states do have Anti-SLAPP laws (permitting penalties for abuse of courts for exactly this kind of litigation (a Strategic Lawsuit Against Public Policy)) (https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation).
The judge should and must dismiss this indictment. SCOTUS in Counterman v. Colorado in 2023 established that the text of the indictment is not only fatally deficient, it's obviously frivolous.
As SCOTUS clearly and prominently emphasized in the first paragraph of Counterman, "the First Amendment" clearly "requires proof that the defendant had some subjective understanding of the threatening nature of his statements." That means that the government must initially allege and eventually prove "that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence."
The indictment didn't allege anything about what Comey thought or knew of any such risk. Regarding both counts, the indictment alleged only how a (reasonably inebriated) "reasonable recipient who is familiar with the circumstances would interpret" the mere photo of a mere arrangement of seashells at a beach.
This very defect (the prosecution's reliance on what a "reasonable person" would think) is why SCOTUS ruled that the prosecution in Counterman violated our Constitution. The indictment is irrefutable proof of extreme incompetence of attorneys at the highest levels of the DOJ these days.
86 47 is no more a true threat than the very common slogan, "Join or Die." Ben Franklin designed the cartoon that originally made that slogan famous, and to this day, the National Park Service displays it at Franklin's Museum in Philadelphia. https://en.wikipedia.org/wiki/Join,_or_Die
86 47 even more clearly is no more a true threat than the (many) instances in which Trump supporters prominently display an implicit threat of actual physical violence. Many proudly display a yellow flag depicting a rattlesnake and the words "Don't Tread on Me." If that's not a threat of physical violence, then 86 47 even more clearly cannot be.
As a huge supporter of the Rule Of Law — which protects every one of us — it is still difficult not to conclude, we spend a lot of time & resources on ‘ridiculous’ “stuff”.
As I know you’ve implied, under the admin of 47 as he & terrible enablers have deconstructed the DoJ, yes.
Separating this destructive era from the future is one way to Never [Unforgivably] Give Up, imo.
I have confidence backed by personal On The Ground Action [at the sub-Joyce level 😊] that people of good intent will step up to rebuild our institutions and buttress the principles our beloved country is founded on. Meanwhile we are in Fight Mode 😠💪✌️
Virginia Herrera, yours is a deeply serious comment.
Given Montesquieu's view in The Spirit of the Laws that the principle underlying despotism is fear, injustice becomes a prime tool in the hands of the despotic ruler.
Putin's regime provides a clear illustration of the principle in action. And is not that regime, the model followed by the current tenant of the White House?
"The [German] public has declared its solidarity everywhere. An exemplary discipline prevails. An imposing spectacle! Everything takes its course in the utmost tranquillity, within the Reich too.
...
The world will learn to understand, that it does not do any good, to try to learn facts about Germany through Jewish emigrants. We are facing campaign to conquer with intellect, which will have to be carried out in the world in exactly the same manner, as we have carried it out inside Germany herself.
In the end, the world will learn to understand us.
...
Today, they [the Jews] had better give up Germany and make no such ado of their sorrows. For, the more they talk about it, the more acute the Jewish question will grow, and as soon as the world will begin to concern itself with it, then this problem will always be solved to the disadvantage of the Jews."
- Joseph Goebbels, 1933
Nuremberg - Document Viewer - Extracts from Goebbels's published diary, on the anti-Jewish boycott on 1 April 1933 and the reaction in foreign countries
In terms of the Goebbels' quote, the Republican regime has not yet sufficiently disciplined the public into solidarity for its authoritarian agenda. But they are working on it. And of course, even before ICE, some police enforced prejudice rather than upholding equality before the law. In my experience in Maine, the public is supportive of group and personal political protest. Group protest is protected, but police in the towns I am familiar with, no longer recognize constitutional protections for individual protest.
Resisters: How Ordinary Jews Fought Persecution in Hitler's Germany, by Wolf Gruner
"Each individual described here represents a category of resistance: written opposition, oral protest, contesting Nazi propaganda, defiance of anti-Jewish laws and measures, and self-defense against physical attacks."
I have not forgotten how, in the run-up to the 2016 election, the New York Times would not publish a comment in which I had mentioned the name "Hitler".
Yet tnere was nothing contentious about the content of my message. I merely reported conversations in late 1943 between my naval officer father and a man called Wilcox who, as foreign correspondent of the British newspaper, the News Chronicle, had covered both the Russian revolution and the rise of Adolf Hitler.
Wilcox explained how Hitler had broken with the exceedingly staid tradition of political speechmaking (the model being, he explained, based on funeral oration) and used the language of the beer hall and the barrack room. This caught on like wildfire.
There was, I thought, no need to spell out in any detail, the implications of this fact. Erich Fromm had dealt with the underlying problem at length in works like Escape from Freedom (1941) and The Anatomy of Human Destructiveness (1973). Jung, too, on how Hitler had given voice to the sump of the German collective unconscious...
At this point, it is telling that, when I tried to look up Heinrich Heine's 1834 prophecy, which comes towards the end of his long essay De l'Allemagne, written in French, the only places in which I saw mention of it were The National Review and the New Left Review.
Here's the text:
‘‘Christianity, and this is its greatest merit, has somewhat mitigated the brutal German love of war, but it could not destroy it. Should that subduing talisman, the cross, be shattered, the frenzied madness of the ancient warriors, that insane Berserk rage of which the Nordic bards have spoken and sung so often, will once more burst into flame. This talisman [the cross, Christianity] is fragile. And the day will come when it will collapse miserably. Then the ancient stony gods will rise from the forgotten debris and rub the dust of a thousand years from their eyes. And then Thor, with his giant hammer will jump up and smash the gothic cathedrals.
Do not smile at the advice, the advice of a dreamer who warns you against Kantians, Fichteans, and philosophers of nature. Do not smile at the visionary who anticipates the same revolution in the realm of the visible that has already taken place in the realm of the spirit. Thought precedes action, as lightning precedes thunder. German thunder is of true Teutonic character. It is not nimble, but rumbles ponderously. Yet it will come. And when you hear a crashing such as never before has been heard in the history of the world, then you will know that the German thunderbolt has fallen. At that uproar, the eagles of the air will drop dead. The lions in the remotest deserts of Africa will hide in their royal dens. A play will be performed in Germany which will make the French Revolution look like an innocent idyll.’’
It is indeed curious that this should have touched a genuine conservative [https://robertpgeorge.com/articles/heines-prophecy-and-our-mission/] painfully aware of today's worldwide crisis in values, while apparently remaining unknown to most of our contemporaries, including the educated ones.
The problem of the current inability to write, read, think or feel anything but detritus from Bannon's "flooding the zone with shit" is apparently quite as bad among the rising generation in today's Israel as in the US and elsewhere. Frightening is the fact that in today's world only the leadership of the People's Republic of China and Islamist fanatics show any sense of strategy, while almost everyone else seems primitive in the worst sense of the term, crudely emotional and capable only of seeing in the violent events of the day whatever it is that they want to see, then reacting accordingly, adding mindless violence to coldly deliberate violence.
I'm not going to spell out the continuum of evil here, just to note in passing my view of Goebbels as one of the most influential politicians of the past 150 years... and to mention a label for one aspect of that continuum: The Goliath Syndrome.
Then to close on a note of confidence and determination. There can be no possible return to "the way it was", the survivors of today's collapse will do what they must and build a very different world.
Overall, I think a virtue/utility of religion is that it recognizes and ritualizes the destructive impulses and irrational habits of mind common to all humans. And provides an ethical framework. Religion as interpreted and imposed by the Republican regime, sacralizes the destructive impulses and irrational habits of mind and enforces them as government policy, while eliding any ethical framework.
Ersatz religion, like the Japanese military's "State Shinto" or what the Putin regime has done to the Russian Orthodox Church, driving out or defrocking all genuine priests... the KGB at prayer... an ideological Ponzi scheme.
There's nothing worse than abusing religion as a political tool -- the endemic disease of the monotheisms, but now Modi has used Hindu polytheism to turn citizens against everything that's not home grown.
Dept of absurd vile malicious vindictive criminal conduct. It wants to magically eliminate trumps duty to pay taxes. Blanche is vile corrupt anti constitutional anti rule of law. Hus name implies a pale white ghost.
While this is certainly a Constitutional issue it is also a political problem The attack on Comey was plainly launched at the Insistence of the President it must have been approved by the Acting Attorney General. He spent two days refusing to to answer any questions about his conduct and decision making in this and a number of other cases which are plainly designed to suppress speech in opposition to the President Yet to date only two Republican Senators have expressed any hesitation about Confirming Todd Blanche The confirmation. Process is not working as it was designed to work
Actually, even actually hanging a visage of Trump (and even lighting it on fire) wouldn't be a true threat. It's worth bearing in mind that hanging and burning effigies of leading political figures is a time-honored tradition in the U.S. (from the very earliest days of the U.S. (and even before that)). That's one of the self-evident truths that makes Trump's prosecution of Comey absurd.
President Washington sent SCOTUS Chief Justice John Jay to negotiate a treaty between the U.S. and Britain. The treaty was so unpopular that when Jay returned to the U.S., he famously "said he could find his way across the country by the light of his burning effigies." See "Damn John Jay! Damn everyone who won’t damn John Jay!!" (publicized to this day by the National Park Service) at https://www.nps.gov/articles/backlash-against-jay-s-treaty.htm
By the way, Jay deserved much less criticism than he got then and much more credit than he gets today. For excellent insights into the creation of the U.S. and the crucial roles of John Jay, George Washington, James Madison and Alexander Hamilton, please read "The Quartet: Orchestrating the Second American Revolution, 1783-1789" by an outstanding historian of the American Revolution, Joseph Ellis.
Very fair point. Trump has said much more that legitimately could be prosecuted as a true threat than anyone saying or depicting 86 47. See https://c1n.tv/violent-trump/.
As SCOTUS has emphasized many times, government offices don't commit crimes, government employees do. It's not the Department or the remaining good public servants in it that are the problem. For their and our sakes, it's better to remind DOJ employees of crucial self-evident truths and precious principles, as prior SCOTUS decisions (and leading DOJ lawyers) have, e.g., in the famous Brady v. Maryland decision:
"An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.’ "
The Department of Justice's "chief business is not to achieve victory but to establish justice. We are constantly reminded of the now classic words penned by [an] illustrious [U.S. Solicitor General], Frederick William Lehmann, that 'the Government wins its point when justice is done in its courts.' "
It's well worth repeatedly reminding DOJ employees that "to establish Justice" and to "secure the Blessings of Liberty to ourselves and our Posterity" (including the rights and freedoms in the First Amendment) are two of the primary purposes for which "We the People" did "ordain and establish this Constitution for the United States of America" in 1788.
Tax revenue is being wasted, that is our money not only being wasted, it is being used against us. Being forced to fund our own destruction is despicable. We also paid for the recent national coal resource survey by the Interior Dept. The height of idiocy which somehow deserves punishment.
Your point is one of the things that absolutely drives me crazy, i.e. we are all paying for this nonsense with our taxes. 47 has been bankrupting this nation in the courts his entire life................and getting away with it. It's time "we the jury" return a verdict of guilty as charged and 86 his ass.
I join those of you who are outraged by the waste of revenue. Add to that the recent admission that funds were withheld from blue states just because they vote blue. Why, then, should individuals in those states pay taxes?
All of the corruption, waste, fraud, abuse, abject MAGA stupidity, and the total lack of anything close to human decency is just too much for me to handle at times.
Greg, I'm confident you're referring to the pettiness of Trump and the others responsible for this unconstitutional persecution. But it's that same pettiness that makes this very far from ridiculous. This particular conduct by Trump and DOJ attorneys (seeking to involve our courts, judges and juries in their criminal conspiracy) is one of the greatest threats possible to our Constitution and our rights and freedoms.
Trump and DOJ attorneys are merely pretending to believe that posting a picture of an arrangement of seashells on a beach somehow constitutes a "true threat" to the life of the President of the United States--despite everything Comey knew about all the many U.S. resources devoted to ensuring his security and deterring attackers.
Almost as alarming, Trump and DOJ attorneys are pretending to believe they now see a true threat to one of our two top executive officers even though Trump, himself, was willfully blind to much more realistic threats that were made to another of those two top officers (which also included Trump) on January 6.
Trump, personally, stood idly or even egged on and encouraged his own supporters on Jan. 6 when they erected a scaffold and hangman's noose on the Capitol grounds and when they angrily shouted "Hang Mike Pence" (the sitting Vice President). Trump did so even though the law (of which he actually knew) actually and expressly required Trump to act to command the rioters to disperse. Cf.10 U.S.C. § 254 (Proclamation to disperse) ("Whenever the President considers it necessary to use the militia or the armed forces [to oppose any "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States"], he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.")
Greg, you are right! It is a feature of this Trumpian regime because they use these stupidities as a distraction for the other ways they are screwing the people of the United States as well as our allies.
Agree. The firm foundation for prosecution by this administration has become the frivolous predicated upon moot or tediously irrelevant interpolation of the spurious pique of the petty and vain would-be drump. In the style of course of e e cummings.
I agree completely that it's a lot of time and resources but it is important for us to all think about the reasons we have a Constitution and Amendments that protect us. This case is a good reminder what happens - and what needs to happen - when there is a threat to free speech by the government's own actions.
Madison’s "Report of 1800" was a full‑throated constitutional attack on the fortunately short-lived Sedition Act (1798-1801), and is the single clearest founding-era statement that vigorous criticism of the government and the president is absolutely protected by the First Amendment. It matters because Madison --- the central architect of the Constitution and the Bill of Rights --- explicitly rejected the English model of seditious libel and articulated the uniquely American principle that the people, as sovereign, must be free to scrutinize, censure, and condemn those who govern them, short of an expression of intent to commit unlawful violence. He rejected absolutely the English idea that speech becomes criminal merely because it is hostile, insulting, provocative, or suggestive. He wrote it because the Federalists were prosecuting newspaper editors for criticizing President John Adams and Madison responded with a constitutional brief explaining why this was incompatible with republican government. So when Madison explains what the First Amendment means, it’s not just an opinion --- it’s the closest thing we have to an authoritative founding-era interpretation --- beloved of originalists (and presumably hard to overlook for even conditional originalists).
THANK YOU! Excellent points! IMHO, “seditious libel” is the product of a monarchy that cannot abide any threats — but especially rational, intelligent ideas & arguments. (Hitler, Stalin, and other totalitarians were & are similarly threatened.) On the other hand, Freedom of Speech not only protects such arguments — it encourages those arguments because it assumes that a constitutional, democratic Republic that is unable to counter and withstand “vigorous, rational debate” should (and will) fail. There is nothing to fear from the mere expression of words like “86 47.” Nothing compared to the violent conduct on January 6th — breaking into the Capitol while threatening to harm Nancy Pelosi and hang Mike Pence.
Of course, “speech” can be a crime depending on the “context.” “Soliciting” a known assassin to “86” someone can be a crime. “Encouraging” a rioter who is holding a noose and yelling “hang Mike Pence” might be the crime of “aiding & abetting.”
Of course, the prosecution of Comey is “ridiculous,” but it might benefit us all when the courts definitively reject the mendacious, irrational and absurd arguments raised by Trump, Blanche & the DOJ. Comey isn’t the only target. People are being investigated for expressions that the Trump Administration claims are threatening the FCC Chairman and others. Protesters are being physically attacked for saying “ICE OUT.” We need many more judicial decisions upholding freedom of speech, quoting Madison, and rejecting governmental overreach, irrationality, abuse, and lies.
Loved this entire read, Joyce, thank you for all the detail & analysis! I am no lawyer but I understood it all and can’t see any way for the judge to think this is a viable case! Also thought it was so smart for Comey’s legal counsel to embed specific references just for the Supreme Court, because we all know that’s where this thing will ultimately end up if it’s not dismissed! Appreciate you! 🥹💜
Any DOJ minion who is complicit in these frivolous prosecutions needs to face similar sanctions and possible loss of license. As it is, service in the Trump 2.0 administration will have negative consequences for their futures.
Comey should not have posted this shell message, nor should he have talked about the damn emails right before the election. Not a criminal, but not that bright either.
Excuse my language, but with all of the shit going on in this country and in the world, including the horrible mayhem in Texas with the immigrant concentration camp, and the criminal Trump and his personal lawyers via the DOJ are focused on seashells??? Something that was drawn in the sand 2 years ago???? So Comey doesn't like Trump. Who really does? Hell, Melania doesn't, but perseveres for money for course, and her useless son. I mean, come on. If the judge doesn't dismiss this outright, we are truly lost.
Undermining this authoritarian regime must include judges upholding the Constitution and the rule of law. May Judge Flanagan be one more hero in these perilous conditions.
What will it take to bring on an Avalanche of Accountability to bury these wannabe fascists?
Job One is a Blue Tsunami of election results TOO BIG TO RIG.
Since we who are pro-democracy are the large majority, let's turn our outrage into action! This toolkit has actions any of us can take to Get Out The Vote:
Hungarians booted Orban in April when 79% voted. In the USA in 2024? 12M Biden voters sat out the election, and overall, 64% voted. Closing ANY of those gaps means a BLUNAMI.
Everyone can find their niche. No act is too small. We are going to win!
It has always bothered me that Comey has been accused of creating the seashell statement. I believe he just came across it on a walk and took a photo of it. At least that is how I remember it from the very beginning.
Your second point is spot on. But I think for that to happen there will need to be legislation. There need to be serious consequences and material damages paid upon the dismissal of any frivolous lawsuit pursued by DoJ.
Comey's last-minute announcement of an investigation into Clinton was essentially election interference; especially when you take into account he was keeping the Trump investigation under wraps. But, even helping Trump win an election wasn't enough to ensure any lasting loyalty. It's truly mind-boggling that, despite this and many other examples. people are still willing to roll the dice on their future by working for Donald Trump.
Anybody who supports Trump (as well as anyone who opposes him) would do well to bear in mind the wisdom of Thomas Paine and Justices Stevens, Blackmun and O’Connor dissenting in United States v. Alvarez-Machain in 1992:
"As Thomas Paine warned, an 'avidity to punish is always dangerous to liberty' because it leads a nation 'to stretch, to misinterpret, and to misapply even the best of laws.' To counter that tendency, he reminds us:
'He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.' "
Meanwhile the so called president is spending hours each day posting AI slop, inflammatory AI slop about anyone who has ‘insulted’ him. Is his ‘speech’ protected? I really cannot wait for this insanity to stop.
maybe we should be grateful for any time Trump is distracted from doing his actual job - except that the Project 2025 people keep working away at their agenda while Trump and his young girlfriend play with nasty AI.
Excuse me. Could someone please parse his speech at the White House Correspondents' dinner on Saturday night and tell me how many threats he made against how many journalists?
Some of us don't, and most of the others wish it would all go away. Too much grief over all this folderol. Grow up, Mr. President. Get a life, will ya?
He thinks this is life. This man is so damaged, I am overwhelmed and speechless to describe his actions. See my post above. My God, is it so very, very hard to think of others' misery and try, for some one second of the day, to try to help them instead of this insane litigious action? How in the hell did anyone think he was the chosen one?
And, as president, with his personal lawyer in charge of the DOJ, he's using our tax dollars to fund this lawsuit. Just because he can. Just because Chuck Grassley says "No Problemo".
And, Mr. President, get a grip on life's end - eternity is a long time to contemplate what could be/have been in your everlasting future. Something we all, sooner or later, have to deal with.
God help us all, Sir. I will pray even harder for you. We all need Him in one way or another...
Professor Vance notes that the Justice Dept. waited a year after Comey took a picture of the seashells before concluding that this constituted a "threat" that required an indictment. That's really quite telling, if there was any reason at all to consider the seashells an imminent threat to the president. I am also pleased to read that one could buy an "86 46" t-shirt that referred to President Biden, and the then Justice Dept. apparently took no notice. I would suggest that the current Justice Dept. is acting strictly to appease a president who can accept no criticism and historically has punished his critics insofar as possible by "primarying" members of Congress, suing newspapers, and firing employees (even those who, before the Supreme Court's infamous holding that the president can fire pretty much anybody, were not subject to dismissal by the executive).
The memo also highlighted that even expressly wishing for someone's death wasn't a threat. In fact, a common toast in Virginia (because of the Jay Treaty) was to “[a] speedy death to General Washington.”
"While Mr. Henry lives another bad constitution would be formed, and saddled for ever on us. What we have to do I think is devoutly to pray for his death . . . ."
Perhaps the tariffs, increased healthcare premiums, loss of Medicaid, inflated food costs, etc., is how trump is punishing us, the American people, for not kowtowing at his feet. MAGA is loud, but they’re a minority and not really the caliber of people he wants to love him.
The Comey charges are so ludicrous that any normal person knows whats going on. If 8647 is so threatening and evil they just can’t stop with Comey. Hunt down all the people who bought the t-shirts or,have stickers posted in public
I have a t-shirt that says, "86 47" and it's written in Roman Numerals so the idiots can't figure out what it says. If they are smart enough to figure it out, they know it's not a threat to assassinate someone.
Evening, Joyce, and the gang! I believe trump will again be a LOSER here. I remember when trump fired James Comey, if memory serves. After Comey refused to go after one of trump's opponents, Comey was speaking in California to an auditorium full of college grads about possibly joining the FBI or at least asking them to consider the FBI for their job. trump had a guy fly out there and in the middle of Comey's speech, interrupt to give him a message that he had been fired by trump. Gotta hand it to trump; he's the absolute best at being dastardly. He loves to go after his perceived enemies, especially when they've chosen not to do something they considered out of their purview, even if trump wanted it done. I think the word is scruples. Comey has them, trump doesn't even know the word, especially with his IQ of 73, and that was on a curve!! Best of luck to James Comey. I yield back my time.
And that "guy" also told Comey that he couldn't fly back to Washington, DC on the FBI plane because he wasn't employed by the FBI anymore. Can you get any more petty than that?
I think Comey did take the FBI plane back to DC; no one challenged him.
Excellent review for the lay person. Thank you.
It bothers me so much that MAGA clogs up the courts with these absurd suits.
We need to enact a Nuisance Law, so that the parties who bring these preposterous claims can be held liable for all court costs, plus a hefty fine. Trump would end up bankrupt (again) for his record number of bad-faith lawsuits.
The punishment should be painful, such as suspension of license to practice law
The punishment should be PRISON for life.
It needs to severe enough to discourage future compliance with illegal Regime Orders
Life in Prison as an unpardonable offense?
So Karma!!
This is such a well-known and well-appreciated threat to our rights and freedoms that many states do have Anti-SLAPP laws (permitting penalties for abuse of courts for exactly this kind of litigation (a Strategic Lawsuit Against Public Policy)) (https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation).
Absolutely!
This Leeds United fan agrees :)
It’s a good analysis for us lawyers, as well!😉
Indeed!
The judge should and must dismiss this indictment. SCOTUS in Counterman v. Colorado in 2023 established that the text of the indictment is not only fatally deficient, it's obviously frivolous.
As SCOTUS clearly and prominently emphasized in the first paragraph of Counterman, "the First Amendment" clearly "requires proof that the defendant had some subjective understanding of the threatening nature of his statements." That means that the government must initially allege and eventually prove "that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence."
The indictment didn't allege anything about what Comey thought or knew of any such risk. Regarding both counts, the indictment alleged only how a (reasonably inebriated) "reasonable recipient who is familiar with the circumstances would interpret" the mere photo of a mere arrangement of seashells at a beach.
This very defect (the prosecution's reliance on what a "reasonable person" would think) is why SCOTUS ruled that the prosecution in Counterman violated our Constitution. The indictment is irrefutable proof of extreme incompetence of attorneys at the highest levels of the DOJ these days.
86 47 is no more a true threat than the very common slogan, "Join or Die." Ben Franklin designed the cartoon that originally made that slogan famous, and to this day, the National Park Service displays it at Franklin's Museum in Philadelphia. https://en.wikipedia.org/wiki/Join,_or_Die
86 47 even more clearly is no more a true threat than the (many) instances in which Trump supporters prominently display an implicit threat of actual physical violence. Many proudly display a yellow flag depicting a rattlesnake and the words "Don't Tread on Me." If that's not a threat of physical violence, then 86 47 even more clearly cannot be.
The Gadsden flag clearly implies a threat to actually strike, specifically even with fatal effect. See https://www.youtube.com/watch?v=3aX_0mhWDBc&t=166s and https://www.thehistoryofenglish.com/dont-tread-on-me-meaning-origin-usage.
As a huge supporter of the Rule Of Law — which protects every one of us — it is still difficult not to conclude, we spend a lot of time & resources on ‘ridiculous’ “stuff”.
We need to change the name of DOJ to DOI “DEPARTMENT OF INJUSTICE “
As I know you’ve implied, under the admin of 47 as he & terrible enablers have deconstructed the DoJ, yes.
Separating this destructive era from the future is one way to Never [Unforgivably] Give Up, imo.
I have confidence backed by personal On The Ground Action [at the sub-Joyce level 😊] that people of good intent will step up to rebuild our institutions and buttress the principles our beloved country is founded on. Meanwhile we are in Fight Mode 😠💪✌️
Virginia Herrera, yours is a deeply serious comment.
Given Montesquieu's view in The Spirit of the Laws that the principle underlying despotism is fear, injustice becomes a prime tool in the hands of the despotic ruler.
Putin's regime provides a clear illustration of the principle in action. And is not that regime, the model followed by the current tenant of the White House?
"The [German] public has declared its solidarity everywhere. An exemplary discipline prevails. An imposing spectacle! Everything takes its course in the utmost tranquillity, within the Reich too.
...
The world will learn to understand, that it does not do any good, to try to learn facts about Germany through Jewish emigrants. We are facing campaign to conquer with intellect, which will have to be carried out in the world in exactly the same manner, as we have carried it out inside Germany herself.
In the end, the world will learn to understand us.
...
Today, they [the Jews] had better give up Germany and make no such ado of their sorrows. For, the more they talk about it, the more acute the Jewish question will grow, and as soon as the world will begin to concern itself with it, then this problem will always be solved to the disadvantage of the Jews."
- Joseph Goebbels, 1933
Nuremberg - Document Viewer - Extracts from Goebbels's published diary, on the anti-Jewish boycott on 1 April 1933 and the reaction in foreign countries
.https://nuremberg.law.harvard.edu/documents/1049-extracts-from-goebbelss-published?mode=text.
In terms of the Goebbels' quote, the Republican regime has not yet sufficiently disciplined the public into solidarity for its authoritarian agenda. But they are working on it. And of course, even before ICE, some police enforced prejudice rather than upholding equality before the law. In my experience in Maine, the public is supportive of group and personal political protest. Group protest is protected, but police in the towns I am familiar with, no longer recognize constitutional protections for individual protest.
Resisters: How Ordinary Jews Fought Persecution in Hitler's Germany, by Wolf Gruner
"Each individual described here represents a category of resistance: written opposition, oral protest, contesting Nazi propaganda, defiance of anti-Jewish laws and measures, and self-defense against physical attacks."
https://yalebooks.yale.edu/book/9780300267198/resisters/
Johannesburg Launch of Resisters by Wolf Gruner
https://youtu.be/n8ojMkVMz8g?si=MHJjkwH7kxzlECPP
Thank you, Lin, for this important reminder.
I have not forgotten how, in the run-up to the 2016 election, the New York Times would not publish a comment in which I had mentioned the name "Hitler".
Yet tnere was nothing contentious about the content of my message. I merely reported conversations in late 1943 between my naval officer father and a man called Wilcox who, as foreign correspondent of the British newspaper, the News Chronicle, had covered both the Russian revolution and the rise of Adolf Hitler.
Wilcox explained how Hitler had broken with the exceedingly staid tradition of political speechmaking (the model being, he explained, based on funeral oration) and used the language of the beer hall and the barrack room. This caught on like wildfire.
There was, I thought, no need to spell out in any detail, the implications of this fact. Erich Fromm had dealt with the underlying problem at length in works like Escape from Freedom (1941) and The Anatomy of Human Destructiveness (1973). Jung, too, on how Hitler had given voice to the sump of the German collective unconscious...
At this point, it is telling that, when I tried to look up Heinrich Heine's 1834 prophecy, which comes towards the end of his long essay De l'Allemagne, written in French, the only places in which I saw mention of it were The National Review and the New Left Review.
Here's the text:
‘‘Christianity, and this is its greatest merit, has somewhat mitigated the brutal German love of war, but it could not destroy it. Should that subduing talisman, the cross, be shattered, the frenzied madness of the ancient warriors, that insane Berserk rage of which the Nordic bards have spoken and sung so often, will once more burst into flame. This talisman [the cross, Christianity] is fragile. And the day will come when it will collapse miserably. Then the ancient stony gods will rise from the forgotten debris and rub the dust of a thousand years from their eyes. And then Thor, with his giant hammer will jump up and smash the gothic cathedrals.
Do not smile at the advice, the advice of a dreamer who warns you against Kantians, Fichteans, and philosophers of nature. Do not smile at the visionary who anticipates the same revolution in the realm of the visible that has already taken place in the realm of the spirit. Thought precedes action, as lightning precedes thunder. German thunder is of true Teutonic character. It is not nimble, but rumbles ponderously. Yet it will come. And when you hear a crashing such as never before has been heard in the history of the world, then you will know that the German thunderbolt has fallen. At that uproar, the eagles of the air will drop dead. The lions in the remotest deserts of Africa will hide in their royal dens. A play will be performed in Germany which will make the French Revolution look like an innocent idyll.’’
It is indeed curious that this should have touched a genuine conservative [https://robertpgeorge.com/articles/heines-prophecy-and-our-mission/] painfully aware of today's worldwide crisis in values, while apparently remaining unknown to most of our contemporaries, including the educated ones.
The problem of the current inability to write, read, think or feel anything but detritus from Bannon's "flooding the zone with shit" is apparently quite as bad among the rising generation in today's Israel as in the US and elsewhere. Frightening is the fact that in today's world only the leadership of the People's Republic of China and Islamist fanatics show any sense of strategy, while almost everyone else seems primitive in the worst sense of the term, crudely emotional and capable only of seeing in the violent events of the day whatever it is that they want to see, then reacting accordingly, adding mindless violence to coldly deliberate violence.
I'm not going to spell out the continuum of evil here, just to note in passing my view of Goebbels as one of the most influential politicians of the past 150 years... and to mention a label for one aspect of that continuum: The Goliath Syndrome.
Then to close on a note of confidence and determination. There can be no possible return to "the way it was", the survivors of today's collapse will do what they must and build a very different world.
Overall, I think a virtue/utility of religion is that it recognizes and ritualizes the destructive impulses and irrational habits of mind common to all humans. And provides an ethical framework. Religion as interpreted and imposed by the Republican regime, sacralizes the destructive impulses and irrational habits of mind and enforces them as government policy, while eliding any ethical framework.
Ersatz religion, like the Japanese military's "State Shinto" or what the Putin regime has done to the Russian Orthodox Church, driving out or defrocking all genuine priests... the KGB at prayer... an ideological Ponzi scheme.
There's nothing worse than abusing religion as a political tool -- the endemic disease of the monotheisms, but now Modi has used Hindu polytheism to turn citizens against everything that's not home grown.
Dept of absurd vile malicious vindictive criminal conduct. It wants to magically eliminate trumps duty to pay taxes. Blanche is vile corrupt anti constitutional anti rule of law. Hus name implies a pale white ghost.
What's in a name?
In French, BLANC feminine BLANCHE means WHITE.
[In English this gives rise to words like BLANK and TO BLENCH.]
The verb BLANCHIR means TO WHITEN or TO WHITEWASH.
Hence, UNE SEPULTURE BLANCHIE means A WHITED SEPULCHER...
In the present context, an innocent name, that of a Queen of France, becomes somewhat unfortunate...
While this is certainly a Constitutional issue it is also a political problem The attack on Comey was plainly launched at the Insistence of the President it must have been approved by the Acting Attorney General. He spent two days refusing to to answer any questions about his conduct and decision making in this and a number of other cases which are plainly designed to suppress speech in opposition to the President Yet to date only two Republican Senators have expressed any hesitation about Confirming Todd Blanche The confirmation. Process is not working as it was designed to work
Department of Trump Protection? That's why I thought the hanging visage of Trump was installed.
careful, there, Swbv! The phrase "hanging visage of Trump" may be seen as a threat to execute the President.
Actually, even actually hanging a visage of Trump (and even lighting it on fire) wouldn't be a true threat. It's worth bearing in mind that hanging and burning effigies of leading political figures is a time-honored tradition in the U.S. (from the very earliest days of the U.S. (and even before that)). That's one of the self-evident truths that makes Trump's prosecution of Comey absurd.
President Washington sent SCOTUS Chief Justice John Jay to negotiate a treaty between the U.S. and Britain. The treaty was so unpopular that when Jay returned to the U.S., he famously "said he could find his way across the country by the light of his burning effigies." See "Damn John Jay! Damn everyone who won’t damn John Jay!!" (publicized to this day by the National Park Service) at https://www.nps.gov/articles/backlash-against-jay-s-treaty.htm
By the way, Jay deserved much less criticism than he got then and much more credit than he gets today. For excellent insights into the creation of the U.S. and the crucial roles of John Jay, George Washington, James Madison and Alexander Hamilton, please read "The Quartet: Orchestrating the Second American Revolution, 1783-1789" by an outstanding historian of the American Revolution, Joseph Ellis.
No,no, no! I meant suspending a glorious banner!
Good! Make it so, Number One! And do it underground so no one will have to see it.
Very fair point. Trump has said much more that legitimately could be prosecuted as a true threat than anyone saying or depicting 86 47. See https://c1n.tv/violent-trump/.
As SCOTUS has emphasized many times, government offices don't commit crimes, government employees do. It's not the Department or the remaining good public servants in it that are the problem. For their and our sakes, it's better to remind DOJ employees of crucial self-evident truths and precious principles, as prior SCOTUS decisions (and leading DOJ lawyers) have, e.g., in the famous Brady v. Maryland decision:
"An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.’ "
The Department of Justice's "chief business is not to achieve victory but to establish justice. We are constantly reminded of the now classic words penned by [an] illustrious [U.S. Solicitor General], Frederick William Lehmann, that 'the Government wins its point when justice is done in its courts.' "
It's well worth repeatedly reminding DOJ employees that "to establish Justice" and to "secure the Blessings of Liberty to ourselves and our Posterity" (including the rights and freedoms in the First Amendment) are two of the primary purposes for which "We the People" did "ordain and establish this Constitution for the United States of America" in 1788.
DOR - Department of Revenge, which is what it is - not retribution.
It is not "we" who are spending resources on "ridiculous stuff." It is "they," the Trump regime including his minions in DOJ and cabinet positions.
Tax revenue is being wasted, that is our money not only being wasted, it is being used against us. Being forced to fund our own destruction is despicable. We also paid for the recent national coal resource survey by the Interior Dept. The height of idiocy which somehow deserves punishment.
Your point is one of the things that absolutely drives me crazy, i.e. we are all paying for this nonsense with our taxes. 47 has been bankrupting this nation in the courts his entire life................and getting away with it. It's time "we the jury" return a verdict of guilty as charged and 86 his ass.
Daniel and Bill:
I join those of you who are outraged by the waste of revenue. Add to that the recent admission that funds were withheld from blue states just because they vote blue. Why, then, should individuals in those states pay taxes?
All of the corruption, waste, fraud, abuse, abject MAGA stupidity, and the total lack of anything close to human decency is just too much for me to handle at times.
I'm with you Mary all the way.
sorry: It should be David and Bill.
Yes, we as a nation pay (and borrow) as they spend.
Bad Bondi and Todd Blanche set the table
Greg, I'm confident you're referring to the pettiness of Trump and the others responsible for this unconstitutional persecution. But it's that same pettiness that makes this very far from ridiculous. This particular conduct by Trump and DOJ attorneys (seeking to involve our courts, judges and juries in their criminal conspiracy) is one of the greatest threats possible to our Constitution and our rights and freedoms.
Trump and DOJ attorneys are merely pretending to believe that posting a picture of an arrangement of seashells on a beach somehow constitutes a "true threat" to the life of the President of the United States--despite everything Comey knew about all the many U.S. resources devoted to ensuring his security and deterring attackers.
Almost as alarming, Trump and DOJ attorneys are pretending to believe they now see a true threat to one of our two top executive officers even though Trump, himself, was willfully blind to much more realistic threats that were made to another of those two top officers (which also included Trump) on January 6.
Trump, personally, stood idly or even egged on and encouraged his own supporters on Jan. 6 when they erected a scaffold and hangman's noose on the Capitol grounds and when they angrily shouted "Hang Mike Pence" (the sitting Vice President). Trump did so even though the law (of which he actually knew) actually and expressly required Trump to act to command the rioters to disperse. Cf.10 U.S.C. § 254 (Proclamation to disperse) ("Whenever the President considers it necessary to use the militia or the armed forces [to oppose any "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States"], he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.")
Greg, you are right! It is a feature of this Trumpian regime because they use these stupidities as a distraction for the other ways they are screwing the people of the United States as well as our allies.
Agree. The firm foundation for prosecution by this administration has become the frivolous predicated upon moot or tediously irrelevant interpolation of the spurious pique of the petty and vain would-be drump. In the style of course of e e cummings.
It would be interesting if there was a way to estimate the total cumulative cost of tRump's lawfare.
I agree completely that it's a lot of time and resources but it is important for us to all think about the reasons we have a Constitution and Amendments that protect us. This case is a good reminder what happens - and what needs to happen - when there is a threat to free speech by the government's own actions.
Madison’s "Report of 1800" was a full‑throated constitutional attack on the fortunately short-lived Sedition Act (1798-1801), and is the single clearest founding-era statement that vigorous criticism of the government and the president is absolutely protected by the First Amendment. It matters because Madison --- the central architect of the Constitution and the Bill of Rights --- explicitly rejected the English model of seditious libel and articulated the uniquely American principle that the people, as sovereign, must be free to scrutinize, censure, and condemn those who govern them, short of an expression of intent to commit unlawful violence. He rejected absolutely the English idea that speech becomes criminal merely because it is hostile, insulting, provocative, or suggestive. He wrote it because the Federalists were prosecuting newspaper editors for criticizing President John Adams and Madison responded with a constitutional brief explaining why this was incompatible with republican government. So when Madison explains what the First Amendment means, it’s not just an opinion --- it’s the closest thing we have to an authoritative founding-era interpretation --- beloved of originalists (and presumably hard to overlook for even conditional originalists).
Yes! Thank you for articulating this.
THANK YOU! Excellent points! IMHO, “seditious libel” is the product of a monarchy that cannot abide any threats — but especially rational, intelligent ideas & arguments. (Hitler, Stalin, and other totalitarians were & are similarly threatened.) On the other hand, Freedom of Speech not only protects such arguments — it encourages those arguments because it assumes that a constitutional, democratic Republic that is unable to counter and withstand “vigorous, rational debate” should (and will) fail. There is nothing to fear from the mere expression of words like “86 47.” Nothing compared to the violent conduct on January 6th — breaking into the Capitol while threatening to harm Nancy Pelosi and hang Mike Pence.
Of course, “speech” can be a crime depending on the “context.” “Soliciting” a known assassin to “86” someone can be a crime. “Encouraging” a rioter who is holding a noose and yelling “hang Mike Pence” might be the crime of “aiding & abetting.”
Of course, the prosecution of Comey is “ridiculous,” but it might benefit us all when the courts definitively reject the mendacious, irrational and absurd arguments raised by Trump, Blanche & the DOJ. Comey isn’t the only target. People are being investigated for expressions that the Trump Administration claims are threatening the FCC Chairman and others. Protesters are being physically attacked for saying “ICE OUT.” We need many more judicial decisions upholding freedom of speech, quoting Madison, and rejecting governmental overreach, irrationality, abuse, and lies.
Thank you for this. "...beloved of originalists..." except when they aren't really "originalists" but "destroyers of country".
Loved this entire read, Joyce, thank you for all the detail & analysis! I am no lawyer but I understood it all and can’t see any way for the judge to think this is a viable case! Also thought it was so smart for Comey’s legal counsel to embed specific references just for the Supreme Court, because we all know that’s where this thing will ultimately end up if it’s not dismissed! Appreciate you! 🥹💜
Prosecutor should be sanctioned. Hes already been reported to ny state to have license disciplined
Any DOJ minion who is complicit in these frivolous prosecutions needs to face similar sanctions and possible loss of license. As it is, service in the Trump 2.0 administration will have negative consequences for their futures.
I'm not a big fan of Comey but this whole charade prosecution is ridiculous. The courts need to 86 Trump and his entire slimy train of cling-ons.
Comey should not have posted this shell message, nor should he have talked about the damn emails right before the election. Not a criminal, but not that bright either.
As he's the one who gave us the idiot in his first election, it's interesting that the idiot is going after him.
Excuse my language, but with all of the shit going on in this country and in the world, including the horrible mayhem in Texas with the immigrant concentration camp, and the criminal Trump and his personal lawyers via the DOJ are focused on seashells??? Something that was drawn in the sand 2 years ago???? So Comey doesn't like Trump. Who really does? Hell, Melania doesn't, but perseveres for money for course, and her useless son. I mean, come on. If the judge doesn't dismiss this outright, we are truly lost.
I think poor Barron is on the spectrum maybe...he has a flat affect. (no facial expression)
Undermining this authoritarian regime must include judges upholding the Constitution and the rule of law. May Judge Flanagan be one more hero in these perilous conditions.
What will it take to bring on an Avalanche of Accountability to bury these wannabe fascists?
Job One is a Blue Tsunami of election results TOO BIG TO RIG.
Since we who are pro-democracy are the large majority, let's turn our outrage into action! This toolkit has actions any of us can take to Get Out The Vote:
https://tinyurl.com/4e2zsxmj
Hungarians booted Orban in April when 79% voted. In the USA in 2024? 12M Biden voters sat out the election, and overall, 64% voted. Closing ANY of those gaps means a BLUNAMI.
Everyone can find their niche. No act is too small. We are going to win!
Dear Joyce…. So many thanks for your clarity of thought…
1. Not that it matters, but did Comey place the shells in position, or did he simply take a photo of shells already there?
2. Why aren’t judges penalizing the DOJ for these frivolous lawsuits? If they don’t, they will simply continue.
It has always bothered me that Comey has been accused of creating the seashell statement. I believe he just came across it on a walk and took a photo of it. At least that is how I remember it from the very beginning.
Your second point is spot on. But I think for that to happen there will need to be legislation. There need to be serious consequences and material damages paid upon the dismissal of any frivolous lawsuit pursued by DoJ.
Comey's last-minute announcement of an investigation into Clinton was essentially election interference; especially when you take into account he was keeping the Trump investigation under wraps. But, even helping Trump win an election wasn't enough to ensure any lasting loyalty. It's truly mind-boggling that, despite this and many other examples. people are still willing to roll the dice on their future by working for Donald Trump.
Anybody who supports Trump (as well as anyone who opposes him) would do well to bear in mind the wisdom of Thomas Paine and Justices Stevens, Blackmun and O’Connor dissenting in United States v. Alvarez-Machain in 1992:
"As Thomas Paine warned, an 'avidity to punish is always dangerous to liberty' because it leads a nation 'to stretch, to misinterpret, and to misapply even the best of laws.' To counter that tendency, he reminds us:
'He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.' "
Exactly so, Kevin.
Meanwhile the so called president is spending hours each day posting AI slop, inflammatory AI slop about anyone who has ‘insulted’ him. Is his ‘speech’ protected? I really cannot wait for this insanity to stop.
Just remember "Good" upon learning of Robert Mueller's passing. It tells you a lot about the hollow man.
Doesn’t he have anything better to do, like Presidenting?
maybe we should be grateful for any time Trump is distracted from doing his actual job - except that the Project 2025 people keep working away at their agenda while Trump and his young girlfriend play with nasty AI.
Excuse me. Could someone please parse his speech at the White House Correspondents' dinner on Saturday night and tell me how many threats he made against how many journalists?
Very good point.
Only Trump's personal lawyer could find that horrific speech to have been less serious than a bunch of seashells
Some of us don't, and most of the others wish it would all go away. Too much grief over all this folderol. Grow up, Mr. President. Get a life, will ya?
He thinks this is life. This man is so damaged, I am overwhelmed and speechless to describe his actions. See my post above. My God, is it so very, very hard to think of others' misery and try, for some one second of the day, to try to help them instead of this insane litigious action? How in the hell did anyone think he was the chosen one?
And, as president, with his personal lawyer in charge of the DOJ, he's using our tax dollars to fund this lawsuit. Just because he can. Just because Chuck Grassley says "No Problemo".
And, Mr. President, get a grip on life's end - eternity is a long time to contemplate what could be/have been in your everlasting future. Something we all, sooner or later, have to deal with.
God help us all, Sir. I will pray even harder for you. We all need Him in one way or another...
Professor Vance notes that the Justice Dept. waited a year after Comey took a picture of the seashells before concluding that this constituted a "threat" that required an indictment. That's really quite telling, if there was any reason at all to consider the seashells an imminent threat to the president. I am also pleased to read that one could buy an "86 46" t-shirt that referred to President Biden, and the then Justice Dept. apparently took no notice. I would suggest that the current Justice Dept. is acting strictly to appease a president who can accept no criticism and historically has punished his critics insofar as possible by "primarying" members of Congress, suing newspapers, and firing employees (even those who, before the Supreme Court's infamous holding that the president can fire pretty much anybody, were not subject to dismissal by the executive).
Comey's memo included a lot of information about the common use of "86." See https://s3.documentcloud.org/documents/28516448/comey-memo-to-dismiss-seashells-case.pdf.
The memo also highlighted that even expressly wishing for someone's death wasn't a threat. In fact, a common toast in Virginia (because of the Jay Treaty) was to “[a] speedy death to General Washington.”
That calls to mind something similar that Thomas Jefferson said in a letter to James Madison about Patrick Henry in 1784 (see https://founders.archives.gov/documents/Jefferson/01-07-02-0402):
"While Mr. Henry lives another bad constitution would be formed, and saddled for ever on us. What we have to do I think is devoutly to pray for his death . . . ."
Perhaps the tariffs, increased healthcare premiums, loss of Medicaid, inflated food costs, etc., is how trump is punishing us, the American people, for not kowtowing at his feet. MAGA is loud, but they’re a minority and not really the caliber of people he wants to love him.
The Comey charges are so ludicrous that any normal person knows whats going on. If 8647 is so threatening and evil they just can’t stop with Comey. Hunt down all the people who bought the t-shirts or,have stickers posted in public
and there are probably pick-up trucks with Confederate flags driving around with legible "8647 Biden" stickers.
being pulled by jackasses because gas is too high, must use money for jack daniels
I have a t-shirt that says, "86 47" and it's written in Roman Numerals so the idiots can't figure out what it says. If they are smart enough to figure it out, they know it's not a threat to assassinate someone.
Evening, Joyce, and the gang! I believe trump will again be a LOSER here. I remember when trump fired James Comey, if memory serves. After Comey refused to go after one of trump's opponents, Comey was speaking in California to an auditorium full of college grads about possibly joining the FBI or at least asking them to consider the FBI for their job. trump had a guy fly out there and in the middle of Comey's speech, interrupt to give him a message that he had been fired by trump. Gotta hand it to trump; he's the absolute best at being dastardly. He loves to go after his perceived enemies, especially when they've chosen not to do something they considered out of their purview, even if trump wanted it done. I think the word is scruples. Comey has them, trump doesn't even know the word, especially with his IQ of 73, and that was on a curve!! Best of luck to James Comey. I yield back my time.
And that "guy" also told Comey that he couldn't fly back to Washington, DC on the FBI plane because he wasn't employed by the FBI anymore. Can you get any more petty than that?
I think Comey did take the FBI plane back to DC; no one challenged him.
yes, that was damned nasty but so trumpy.