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 47th 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.
Ethics Alarms 
Jack, this is 4D chess, now the right can point to the media’s treatment of this issue when the left does the usual projecting. Still unethical to use the law this way, but very human.
Or the DOJ was pressured to prosecute Comey and Comey’s protectors in the DOJ did this to make Trump look foolish and make sure Comey isn’t convicted of anything. If Trump has them drop the charges and refile charges for giving his friend classified documents to leak the press as a revenge policy if Comey were fired, that prosecution would look like a blatantly partisan targeting.
This is what Comey’s indictment smells like. I think you’ve hit on something.
OK, why can’t they just prosecute him for leaking those classified documents to the press?
Of all the things he has done, why prosecute him for THIS?
I agree with your overall conclusion, but I do not agree with your statement that folks don’t know what 86 means. Referring to killing someone as 86-ing them is not an uncommon thing to say. Mafia always said that in the junk mystery novels I read, usually saying that if they wanted to 86 someone, they’d have done it differently to the plucky detective who is accusing them on the red herring chase.
I learn a great deal of new concepts on this site, and often they are the things you claim everyone knows, where as I am usually very familiar with things that “almost no one” knows. I wonder if it is the difference in the white collar and blue collar cultures.
As one example of something you once declared that everyone knew, was that fried chicken and watermelon was a racist meal. I always thought of it as what most people splurged on when they wanted an expensive picnic, because most people really like it, but it’s a little spendy to do normally. Fried chicken and watermelon would describe the meals of most fanciest summer birthday parties in the park that I went to as a child. My husband used to make that a fun summer thing that we would do when we were dinks.
In contrast, the idea of 86-ing someone as killing them is well documented in my circles and in circles intersecting mine. I remember that throughout most of Trump’s first term, my Facebook feed was flooded with people talking about “8645”. Heck, there’s a joke about the death of our 75th president on March 9th. And thinking of that, has me singing that song for the next day and a half… I knew that from at least my bachelor days (19 years ago now) if not younger.
Meta AI (available on WhatsApp).
“86” means to get rid of, cancel, nix, or refuse service to someone/something. Common uses today: Restaurants/bars: “We’re 86 on the ribeye” = sold out. “86 that guy” = kick him out / ban him. General slang: “The plan got 86’d” = canceled. “86 the drama” = cut it out. Military/police code: Sometimes used as radio shorthand for “out of service” or “disregard.”
Where it came from — the main theories: Nobody knows 100%, but here are the strongest origin stories: Restaurant soda fountain codes – 1930s Most likely source.
Soda jerks used numerical shorthand so customers wouldn’t understand. Standard codes: 81 = glass of water 82 = glass of Coca-Cola 86 = item sold out / don’t serve this customer.
Chasen’s Restaurant in LA claimed they invented it, but it was widespread by the 1930s. Prohibition-era bar slang Chumley’s, a NYC speakeasy at 86 Bedford St, would tell unruly customers to “86 it” = go out the 86 Bedford door. Cops knew the bar, so if a raid came, the bartender yelled “86 everybody!” and patrons fled out that exit.
Navy/merchant marine Article 86 of the Uniform Code of Military Justice = AWOL/unauthorized absence. So “86” = get rid of someone who’s not supposed to be there.
Ships also used “86” to mean dump waste overboard. Empire State Building Depth of the East River is 86 feet at the site. If someone jumped, they’d be “86’d” = dead/gone.
Delmonico’s NYC – 1800s Their menu supposedly had 86 items. When item #86 sold out, waiters said “86 it.” No menu survives to prove this.
What linguists think: The Oxford English Dictionary dates first printed use to 1933 in restaurant context. The soda fountain/bar origin has the most documentation. By WWII it spread via military, then into general slang in the 1950s. Bottom line: Started as restaurant code for “we’re out” or “kick them out” in the 1930s, then went mainstream. Today it just means cancel/remove/refuse.