CHICAGO — Patrick Fitzgerald, the former U.S. attorney for northern Illinois, is now representing ex-FBI Director James Comey in his latest legal battle. This marks Comey’s second indictment by the U.S. Justice Department during Donald Trump’s presidency.
Fitzgerald, known for his prosecutorial work, left his position in 2012.
Among his notable cases, Fitzgerald was the prosecutor who took on former Illinois Governor Rod Blagojevich.
Comey is set to make a court appearance on Wednesday, signaling the start of a legal process that experts believe poses significant challenges for the prosecution. The Justice Department may find it difficult to secure a conviction in this complex case.
Comey was indicted in North Carolina on Tuesday, accused of making threats against President Donald Trump. The charges stem from a social media post he made last year, featuring seashells arranged to display the numbers “86 47.” The Justice Department interprets this as a threat against Trump, the 47th president. Comey argues that the numbers were meant as a political statement and promptly removed the post once it was perceived as threatening.
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This indictment adds to Comey’s legal troubles with Trump, following an earlier set of charges related to false statements and obstruction, which were dismissed by a judge last year. Now, prosecutors must prove that Comey intended his post as a genuine threat or acted recklessly in disregarding that it could be seen as such.
The indictment accuses Comey of acting “knowingly and willfully,” but its sparse language offers no support for that assertion. Acting Attorney General Todd Blanche declined to elaborate at a news conference on what evidence of intent the government has. But broad First Amendment protections for free speech, Supreme Court precedent and Comey’s public statements indicating that he did not intend to convey a threat will likely impose a tall burden for the government.
“Here, ’86’ is ambiguous – it doesn’t necessarily threaten violence and the fact that it was the FBI Director posting this openly and notoriously on a public social media site suggests that he didn’t intend to convey a threat of violence,” John Keller, a former senior Justice Department official who led a task force to prosecute violent threats against election workers, wrote in a text message.
The case was charged in the Eastern District of North Carolina, the location of the beach where Comey has said he found the shells. He is set to make his first court appearance Wednesday at the federal courthouse in Alexandria, Virginia, the state where he lives.
What the law says on threats
The Supreme Court has held that statements are not protected by the First Amendment if they meet the legal threshold of a “true threat.”
That requires prosecutors to prove, at a minimum, that a defendant recklessly disregarded the risk that a statement could be perceived as threatening violence. In a 2023 Supreme Court case, the majority held that prosecutors have to show that the “defendant had some subjective understanding of the threatening nature of his statements.”
Meanwhile, the Supreme Court has found that hyperbolic political speech is protected. In a 1969 case, the justices held that a Vietnam War protester did not make a knowing and willful threat against the president when he remarked that “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J,” referring to President Lyndon B. Johnson. The court noted that laughter in the crowd when the protester made the statement, among other things, showed it wasn’t a serious threat of violence.
Regarding the current case, Merriam-Webster, the dictionary used by The Associated Press, says 86 is slang meaning “to throw out,” “to get rid of” or “to refuse service to.” It notes: “Among the most recent senses adopted is a logical extension of the previous ones, with the meaning of ‘to kill.’ We do not enter this sense, due to its relative recency and sparseness of use.”
Comey deleted the post shortly after it was made, writing: “I didn’t realize some folks associate those numbers with violence” and “I oppose violence of any kind so I took the post down.”
John Fishwick, a former U.S. attorney in the Western District of Virginia, said the government will likely try to prove that Comey should have known better as a former FBI director.
“I think they’re going to try to circumstantially say that you were head of the FBI, you knew what these terms meant and you said them out to the whole world as a threat to the president,” Fishwick said, though he noted that such an argument would be challenging in light of Comey’s obvious First Amendment defenses.
Comey was voluntarily interviewed by the Secret Service last year, and the fact that he was not charged with making a false statement suggests that prosecutors do not have evidence that he lied to agents Fishwick said.
Jonathan Turley, a George Washington University law professor, wrote in an opinion piece published Tuesday that “despite being one of Comey’s longest critics, the indictment raises troubling free speech issues. In the end, it must be the Constitution, not Comey, that drives the analysis and this indictment is unlikely to withstand constitutional scrutiny.”
“If it did,” he added, “it would allow the government to criminalize a huge swath of political speech in the United States.”
Kunzelman reported from Alexandria, Va.
ABC7 Chicago contributed to this developing report.
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