Prosecuting James Comey for social media posts may be fruitless, legal and security experts say

The director of US intelligence voiced concern for President Donald Trump’s life after former FBI Director James Comey posted a picture of seashells writing out four numbers. The Secret Service is investigating. And the FBI is ready to provide support. But the end result could be little more than a stern warning for Comey, who infamously oversaw the agency during two separate and fruitless investigations into Trump and Hillary Clinton during the 2016 presidential campaign. Legally speaking, prosecuting Comey may be fruitless as any legal action would stand little chance, especially after a recent Supreme Court decision regarding threats and among a judiciary that has expanded free speech rights in recent years, legal experts say. One source with knowledge of the Secret Service investigation told CNN that the investigation likely “ends” with Comey receiving a stern talking-to from law enforcement. On Thursday, the former FBI head posted a photo of the numbers “86 47” spelled out by shells on a beach he said he came across. Comey quickly took down the post after Republicans and Trump allies said he was calling for the president’s assassination. “I didn’t realize some folks associate those numbers with violence,” Comey said of the number “86,” which can refer to something being tossed away or taken out. The corresponding “47” matches Trump’s current term in office as the 47th president. “It never occurred to me but I oppose violence of any kind so I took the post down.” Homeland Security Kristi Noem took to social media Thursday evening to announce the Secret Service would investigate Comey for what she said was a call “for the assassination” of Trump. Kash Patel, the head of the FBI, said the agency was standing by to assist. “The Secret Service vigorously investigates anything that can be taken as a potential threat against our protectees,” Anthony Guglielmi, Chief of Communications for the U.S. Secret Service said in a statement Thursday. “We are aware of the social media posts by the former FBI director and we take rhetoric like this very seriously. Beyond that, we do not comment on protective intelligence matters.” A Secret Service source familiar with the investigation told CNN that under normal circumstances, such a post wouldn’t warrant a full-fledged investigation but under the current political climate will likely get more attention. Such an investigation, the source said, would serve as a distraction for agents in an organization already stretched thin. While perhaps not a chargeable offense, Comey’s post, however, was unadvised, according to a former Secret Service agent. “It’s not a direct threat. It doesn’t say, ‘go out and kill Donald Trump.’ It doesn’t,” Jon Wackrow, a CNN analyst and former Secret Service agent said. “But in the context of our environment today, this imagery is extremely dangerous, and more so coming from somebody like Comey, who should know better.” Citing last year’s two assassination attempts against Trump and the public murder of a health care CEO in New York, the post from Comey is unwelcomed in “this new assassination culture,” Wackrow said. “He carries the institutional weight of the FBI, so his public commentary should reflect that standard,” Wackrow said. First Amendment protections A Supreme Court decision from two years ago makes it even less likely that federal prosecutors could bring a successful case against Comey. The 2023 decision, authored by Justice Elena Kagan, held that prosecutors must show that a person has “some subjective understanding of the threatening nature of his statements” to bring a winning case that doesn’t run afoul of First Amendment protections of speech. “To prosecute true threats, you need to show recklessness to accord that prosecution with the First Amendment,” Danielle Keats Citron, a University of Virginia law professor, told CNN. “The court didn’t distinguish the person making the threat or the victim who is terrorized.” The Supreme Court case from two years ago involved a man convicted of stalking a musician in Colorado with a series of “creepy” Facebook messages. “Was that you in the white Jeep?” the man wrote in one. “Staying in cyber life is going to kill you,” he wrote in another. State prosecutors secured the conviction by relying on a legal standard that a “reasonable person” would have understood those and other statements to be threats. In its 7-2 decision, the Supreme Court ruled that standard was too low. Instead, the court said, prosecutors must demonstrate that a person making a statement has some awareness that their words could be understood as a threat – a much higher hurdle to clear. On a broad level, the case dealt with what is known as the “true threat” doctrine, a slice of speech that has long been recognized as not receiving protection under the First Amendment. The challenge for courts is in defining a true threat as something distinguishable from pedestrian promises to “kill” a coworker or family member in a flash of anger. On a practical level, Citron predicted, prosecutors are not likely serious about bringing an actual case against Comey. “The problem isn’t the actuality of a conviction, but the cost and fear of being prosecuted that is afoot,” she said. “And that is an affront to free speech in incalculable ways and designed to silence dissent.” Discussing the post, Trump told Fox News that Comey “knew exactly what that meant. A child knows what that meant. If you’re the FBI director and you don’t know what that meant, that meant assassination.” In a statement Friday, the Foundation for Individual Rights and Expression (FIRE), a First Amendment legal advocacy organization, said the post from Comey fell within political speech protected by the Constitution. “It neither constitutes a true threat nor merits federal investigation. 86 has a lot of possible meanings, and the idea that spelling it out in seashells and posting it to Instagram is a true threat is quite a stretch,” the organization said. “The administration should drop any investigation of Mr. Comey because it’s an unconstitutional waste of time.” “The claim that this is a threat is laughable under any standard,” said Mary Anne Franks, a professor at the George Washington Law School who published a book called “Fearless Speech” last year. “I suppose one could say that it’s even more laughable after the court’s ruling” in 2023, she said. But, she said, earlier precedents had already made it clear for decades that “‘crude political hyperbole’ about the president does not constitute a true threat.” In 1969, she noted, the court reversed a conviction against a man who said publicly that if he was ever inducted into the Army and made to carry a rifle “the first man I want to get in my sights is L.B.J.,” a reference to then-President Lyndon Johnson. “It is a cornerstone of First Amendment doctrine that those who choose to serve in public office are expected to be ‘men of fortitude, able to thrive in a hardy climate,’” Franks said, quoting from another Supreme Court decision. CNN’s Zachary Cohen contributed to this report.