How embarrassing, irresponsible and incompetent….

Yes, the Trump DOJ really indicted the Deep State’s scumball ex-FBI Director for his obnoxious Instagram post featuring an anti-Trump seashell message he happened upon on the beach (Yeah, I wouldn’t put it past this guy to arrange the seashells himself and then pretend it was made by someone else, but that is unprovable.)

Trump’s DOJ has unsuccessfully indicted Comey once already. That indictment at least had some law and logic to support it: this one does not. I didn’t think the DOJ and FBI could be so wasteful as to have an ongoing investigation of a seashell formation that has taken eleven months, but to be fair, tracking down all those mollusk witnesses and interviewing them must have been quite a chore.

Last year I wrote, after Comey issued his Instagram post,

“James Comey, the partisan, dishonest, unethical former FBI Director whom Trump was right to fire (but he should have fired him earlier) posted on Instagram, with approval, a message that consisted of the numbers 8647, meaning “rub out the 47^th President,” Donald Trump, delineated with sea shells. …

 “Nice! It didn’t take long for Comey to realize that this was, to say the least, a tactical error, and he took down the post. In doing so, Comey proved what a mendacious creep he is again by claiming that it never occurred to him that 8647 might be interpreted as a call to have the President of the United States eradicated, offed, murdered, killed…you know assassinated. Never mind that there have been two near misses by the “Kill Trump” club already, that some Democrats and “the resistance” have openly advocated violence, and that for a former head of the FBI to join their ranks is, to put it mildly, unseemly. Comey said he was sorry.

“Not good enough. Not nearly good enough. A former high law enforcement official calling for the assassination of the sitting President is a big deal, attention should be paid, and Comey should suffer more than the indignity of having to channel Emily Litella (“Never mind!”)

“…There is no valid justification for taking criminal action against Comey (who wrote coyly under his shells photo, “Cool shell formation”), but there also is no good reason not to thoroughly humiliate this Ethics Villain either.”

Instead, the crack MAGA lawyers in Trump’s Justice Department decided to thoroughly humiliate themselves instead by using this old, obnoxious, since-deleted Instagram post as the basis for two criminal counts alleging that Comey “ma[d]e a threat to take the life of, and to inflict bodily harm upon, the President of the States”:

DOJ has to prove under the law that “a reasonable recipient“ of the image of “8647” posted by Comey “who is familiar with the circumstances would interpret” the post “as a serious expression of an intent to do harm” to Trump. It can’t. Among other things, the editing term “86” is ambiguous. Because I have been an editor, I know it means “Kill this section” or “throw away this story.” But even in the editing game, 86 doesn’t literally mean “kill” because you can’t kill something that isn’t alive in the first place. Furthermore, most Americans don’t have a clue that “86” means “eliminate/cut/get rid of/trash, etc.” In fact, the DOJ can’t assume or prove that Comey did, so the “knowingly and willfully” requirement is dead in the water, like the previous inhabitants of those shells.

It’s overkill because the indictment is obviously absurd and you shouldn’t have to be a lawyer, a legal scholar or a beach-comber to figure it out, but Alan Rozenshtein and Ben Wittes at Lawfare—a reliably anti-Trump, Axis-allied site, but that doesn’t mean it is always wrong— examined the legal issues regarding Comey’s post and concluded, “James Comey could have gone a lot stronger than ‘8647’ and still not risked jail.”

Absolutely correct. Taking a picture of an ambiguous message on a beach and calling it “cool” can’t conceivably constitute a “true threat.”

In Brandenburg v. Ohio, the U.S. Supreme Court held “the constitutional guarantees of free speech and free press do not permit [a law] to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” A seashell message on a beach complimented by a fired FBI director is likely to incite violence? Come on.