← Sidebar with Katie Phang
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And the Seashells have made a return. James Comey has filed his motion to dismiss the bullshit indictment that has been brought against him to prosecute him for a photograph of a formation of seashells in the order of 8647, mind you, seashells that were put into that formation by an anonymous person, not James Comey himself. And the only thing he did was was take a photograph and post it on his social media. Now, let's be clear. There are plenty of people in this world that have no business having access to social media, but I wouldn't put James Comey in that group. And the motion to dismiss is powerful. It has incredible legal citations and references to the history of the evolution of the First Amendment and why we don't prosecute political speech and why it's protected and why it's so precious for us to continue to do so. And I am very confident that this case will come to a screeching halt. The worst case scenario is this motion to dismiss is denied and that the case proceeds to a trial in October, at which point in time James Comey will be acquitted. But of course, we don't want to force people to have to go through the trial process unnecessarily. And that's actually an argument that is raised by Comey in his motion to dismiss. But let's get into the details. As you all know, I like to say that the devil is in the details here, especially in a legal filing. And we're going to walk through it together and I'm going to note some of the kind of more important concepts that are raised. Now, just as a preliminary issue, a motion to dismiss is brought at the beginning of these proceedings. And in this particular instance, it's styled James B. Comey jr's Memorandum in Support of Motion to Dismiss Indictment for Lack of a True threat. And as I just mentioned a couple of minutes ago, it makes sense, right? If you can get an indictment dismissed at this stage of the proceedings, then you spare everybody, including the government, the time and the aggravation, the expenditure of resources, both financial and in terms of blood, sweat and tears in the pursuit of a prosecution that is faulty, defective, just plain fucking wrong. Um, and in this instance checks all of those boxes. So it's brought in the Eastern District of North Carolina. And yes, just as a reminder, it is being brought in North Carolina, being prosecuted in North Carolina because why? Because the Seashells were in the formation. 8647 on a beach in North Carolina. Yes, folks, I know. Alrighty, so it is a 42 page filing from James Comey, and we were going to fast forward to the introduction and oftentimes the introduction Beginning on page 10 of 42, the introduction becomes an incredibly important part of legal filings these days. Why? Because you and I both know we live in an attention economy and a lot of times people are not going to read past the first or second page. And so in the introduction, it makes sense for James Comey to deliver the 1, 2 punch as to why this indictment should be dismissed. And he does so with his incredible legal defense team. He starts off with the following. This indictment targets protected speech at the heart of the First Amendment. Mr. Comey, an outspoken critic of President Trump, posted a photograph of seashells spelling out quote 8647, end quote, a well known political slogan that expresses opposition to the President. In fact, thousands of items featuring the slogan have been sold on the Internet and are available to this day. And the slogan was commonly displayed at protests around the country in the months preceding Mr. Comey's post. But the government now singles out Mr. Comey to prosecute one of the president's most prominent critics for publishing another person's statement of political opposition that attempts to suppress core political speech contravenes both the statutes at issue. And the First Amendment goes on to say that even if 8647 and the posting of a photograph of the formation of those seashells were a viably interpreted threat, it's not a true threat. In fact, at worst, it's a constitutionally protected statement of protected political hyperbole. And that hyperbolic appeal to others to do something of harm to Trump would not remotely qualify as an incitement to violence. The true threat theory fails under an objective, reasonable observer test as a matter of law. And courts have regularly dismissed indictments alleging statements far more threatening than Comey's social media post. And the same result is warranted here. Americans are free to criticize government officials in direct and even strident terms. That is now a central tenet under the First Amendment. Forcing Comey to stand trial for a statement opposing the president, even if he is ultimately acquitted, would itself be an unconstitutional punishment of free speech. And it would invite future prosecutions by the executive branch against perceived political enemies for their opposition to the president. So that's it in a nutshell. And the motion to dismiss goes on to argue the law. And we're not going to skip that. We're going to go into it with a little bit more depth because I think it's important for all of us to understand why the basic precepts and tenets of the law forbid this kind of prosecution. This is not a subjective test, as you just heard. It's an objective test from a reasonable observer and whether or not they would think reasonably that the posting of a photograph of someone else's political speech is a threat, a threat to do harm to the President of the United States. And if a reasonable observer, as an objective test, if a reasonable observer could not deem this to be a threat, then there's no there there. And at this stage in the proceedings, the indictment can and must be dismissed. So just a reminder, background in history, always important, right? In 2017, convicted felon Donald Trump fired James Comey as the FBI director because of the FBI's investigation into Russian interference in the 2016 election. And the motion notes that since his firing and termination by Trump, James Comey has been a private citizen, but has also been exercising his First Amendment protected, free speech right to criticize Donald Trump. Comey has called Trump, quote, untethered to the truth, unethical, and morally unfit to be president. Incredibly presciently, Comey in the 2024 election campaign said that a second Trump term would have serious implications for the Justice Department and the FBI because Trump is coming for those institutions and that it would be a danger for all Americans. I mean, the guy Comey's like a walking fortune cookie, is he not? I mean, he knew, just like many of us did, that having a second Trump term would be not just a backslide into autocracy. It would be like a freaking greased up slip and slide into a dictatorship. But because what's good for the goose is good for the gander, is it not? The motion does analyze as well the fact that Donald Trump himself has criticized Comey far more harshly. An example, Trump has called Comey, quote, either very sick or very dumb and a corrupt piece of garbage. Trump has also urged his subordinates in the executive branch to wield the government's authority against Mr. Comey. For example, Trump pressured Pam Joe with the bad hair when she was the Attorney General to prosecute James Comey. And then what did Pam Joe do? She gave a, quote, purported interim U.S. attorney the ability in the Eastern District of Virginia, Lindsay Halligan, insurance lawyer, to get an indictment of Comey on her fourth day of office. But then, of course, as we know, that indictment was dismissed less than two months later on the technical issue of whether Halligan could even bring that indictment because she was not appropriately the interim U.S. attorney in the Eastern District of Virginia. But remember, there was also allegations of really bad conduct and violations of grand jury proceedings, misstatements, affirmative misrepresentations of law, fact, burdens of proof, etc on the part of Haligan. In order to do what? To secure this indictment against James Comey. Now, May 15, 2015. Comey, walking on a public beach in North Carolina, sees the seashells in the formation of 8647. You see it on your screen right now. According to the Miriam Webster Dictionary, 86 is a slang term used in the restaurant industry to get rid of or throw out the number. 47 is Trump as the 47th president. And so Comey thought, oh, hey, 86, 47 means opposition to Donald Trump. Let's get rid of Donald Trump. So he posts a photograph of that on Instagram and he writes the following caption, cool shell formation on my beach walk. He doesn't write anything like, great shell formation. Don't know who did it, but let's go and kill Donald Trump. I mean, he doesn't even come close to saying that, right? It was not directed to Trump. It was posted on Instagram for his. Let's see, I don't know how many followers. Lots of them. And at 200,000 Instagram followers, and frankly, it's a public post, so billions of users on Instagram could have seen it. And very importantly here, Trump himself, when that post was made, was in Qatar and the UAE, almost 7,000 miles away from North Carolina. And that's really important because when you are making a credible threat, there has to be imminent harm available. And I don't know how you do that to somebody who is 7,000 miles away. So keep that in mind as well. Comey posts the image on Insta. Trump and his supporters immediately go after him, saying that that's a threat to assassinate Trump. However, FBI Director Cash Patel. I'll meet you in Valhalla, brother, says the post is a, quote, political stand and others gratuitously after Trump inappropriately says and inappropriately and incorrectly interprets the law says that it's a threat. Trump supporters say that 8647 is violence against Trump. But once Comey became aware of the drama surrounding it, he deleted the post and said, I assumed it was a political message. I didn't realize people associate numbers with violence. So I oppose violence. I took it down. And then he immediately himself initiated contact with the local police chief to tell him about the drama over the post. And he also agreed to be interviewed by Secret Service agents that same night and the next day. A year after the Post, a grand jury in the Eastern District of North Carolina returns this indictment against Comey with two counts. Now, this is important. Count one alleges that Comey knowingly and willfully made a threat to take the life of and to inflict bodily harm upon the president. And count two alleges that Comey knowingly and willfully transmitted in interstate and foreign commerce a communication that contained a threat to kill Donald Trump. We can just stop right now, because you and I both know that as a matter of law, no matter what interpretation you want to give to what James Comey did, neither interpretation, you could close your eyes and just dream for the most for Trump, and it would never come to the level of sustaining the elements of the causes of action here for these crimes. And if you can't meet the elements of the crimes, then there's no sustainable indictment. The indictment never should have been obtained in the first place. And I, of course, still have open questions about what were the representations made to secure this indictment in the first instance. Putting that aside, we know that what has happened thus far factually and as alleged in this indictment does not rise to the level to be able to sustain those two charges against James Comey. There's a federal rule of criminal procedure that allows that an indictment may be dismissed for a failure to state an offense which I just talked about if it doesn't meet the elements of the crime. And under any legal standard. The validity of this indictment turns on a single issue of the law. Whether Comey's post was a, quote, true threat. And it can't just be political hyperbole, because even the United States Supreme Court has said political hyperbole is protected speech. It has to be a true threat. And a true threat is defined under the law as this a serious expression conveying that the speaker himself means to commit an act of lawful violence. A statement is a true threat only if an ordinary, reasonable recipient who is familiar with the context would interpret the statement as a threat of injury. A couple of things to focus on here. One, it had to be Comey who was going to actually do the violence. It couldn't be a call to action for somebody else to interpret Comey's post to go and do violence against Trump. That's an important issue. And two, again, we go back to the ordinary reasonable person standard here. And an ordinary cuz Trump ain't ordinary and Trump ain't reasonable. But an ordinary, reasonable person could never interpret the posting of the Instagram post as a true threat of violence by Comey against felon Trump. There's 00 ways that you could interpret it to make it meet that legal standard. Now the motion goes on to dive deeper into the analysis and again we talk about the context within which it within which it is written. 8647 does not have anything to do with a threat of violence. It just means to throw out, get rid of or refuse service to for the 86 and the 40 is obviously Trump. But remember for example, there's a great, great great example here on page 13. A former Republican official launched a PAC in 2019 with by the name of 86 Trump which aimed to support president's political opponents and unseating him after several Republican leaders were ousted from their leadership roles. A former member of the House of Representatives by the name of Matt gaetz posted quote We've now 86 McCarthy, McDaniel, McConnell. Better days are ahead for the Republican Party. Why is Matt Gaetz not being prosecuted for the threat of killing McCarthy, McDaniel and McConnell if he says to 86 them he posted it on his social media. In fact he himself made that post. It wasn't in James Comey situation Comey posting the seashell formation done by an anonymous entirely different third party person. So maybe somebody should be knocking on Matt Gaetz's door to prosecute him if that's the case. As noted before, merchandise aiding 8,647 sold on Amazon and other websites even right now still available. A decision from 06-29-2026 from DC is instructive accountability now USA vs Greece or Grice G R I E S S the court granted summary judgment and an injunction barring the government from taking enforcement action against an organization calling for the impeachment and remov Donald Trump based on the organization's display of a flag with the legend 8647. The court says that the relevant context makes clear that no reasonable observer could have viewed the display of the flag as a threat to the President's life or physical safety. Boom. You have a decision from just literally less than a month ago that is not only instructive here, but shows that a reasonable person looking at this in the context within which it is posted and made could never think that Comey meant to do harm to Donald Trump. At most, it's political hyperbole protected by the First Amendment and outside the scope of a true threat. And then the motion to dismiss goes on to discuss the fact that because Comey gave no indication of his own intent to engage in a violent act, that you don't have a true threat existing here. And in fact, most of Trump's supporters themselves universally said that Comey's post called for the president to be murdered rather than threatening to harm the president himself. Again, was a call to action for others to do something to Trump, not Comey saying, I'm doing something to him. The indictment must be dismissed. And allowing it to proceed beyond this motion to dismiss stage is also unprecedented in the constitutional tradition of our country and would give the government broad sensorial power in a way that is wrong. Like egregiously wrong. And then recently, for example, Marjorie Taylor Greene, when she was still in office, wrote on Facebook that Barack Obama and Hillary Clinton should be hanged. Trump himself said that several members of Congress that criticized military policy should be do it should be punished by death by hanging. During the 2016 campaign, Trump said if Hillary Clinton were elected, Second Amendment people might be the only ones who could stop her. I mean, it goes on and on, right? And look, we shouldn't condone, I think, politically violent speech. And yet Comey doesn't even come close, people. It is not an apples to apples comparison, not by any stretch of the imagination. The motion concludes with the following. This case implicates one of our nation's most cherished guarantees. Quote, no official, high or petty, may command our tongues or silence our voices. Ooh, that one should hurt for Donald Trump. No official, high or petty, may command our tongues or silence our voices. He may have the highest office in the land, but Donald Trump is certainly a petty, isn't he? And this is exhibit A. If I were to be prosecuting this case of pettiness. But the prosecution is often the pain, the successful win they know they're not gonna get. It's the process that is painful, and the process is the punishment, and it's wrong. And the judge in this case has the opportunity to do the right thing. The presentation of the indictment was done to a grand jury. And I stress here, I have big open questions about the representations made by the Trump DOJ to secure this indictment. It. But the judge wasn't involved at that stage. The judge is involved now. And as we've seen James Comey post on social media, trust me, he wasn't deterred to continue to post on social media. He's ready for a trial. Bring it on is what he says. And a trial will happen very quickly if this motion to dismiss is not granted. Now, look, couple of options, right? I mean, it could just be granted. And what I would love to see after that is James Comey pursuing malicious prosecution action, meaning sue. Sue for malicious prosecution. Because there is this tradition now from this DOJ of vindictive and selective prosecution, this tradition of weaponizing a DOJ under lackeys like Pam, Joe, and now the guy who's aspiring Todd Blanche, personal lawyer for Felon Trump, the guy who's aspiring to get the permanent gig, right? I mean, they can't be rewarded for their bad behavior, for allowing themselves to be enablers and to be used to further the weaponization of this doj. The rule of law still stands. And for those of you that are out there, that are naysayers, that are like, oh, nothing ever matters anymore, it still does. Because as you see, ultimately, the battles are being waged in the courts. Look, the ballot boxes. Yeah, those are always going to be the most important. And yet what happens when there's a conflict about the ballot box? It goes where it goes to court. And so that's why we need to root for a successful motion to dismiss by James Comey, because the more that we can get these indictments dismissed, the more that we can stop these types of vindictive prosecutions. And I would actually add a really important footnote here. Congresswoman Lamonica McIver. She's being politically prosecuted for doing her job, for conducting congressionally protected oversight over an ICE detention facility. And it's no secret what this administration regime has been doing with immigration enforcement tactics. And it's no secret what privatized detention facilities are like. So to punish Congresswoman McIver for doing her job, for doing protected conduct, is just as bad as trying to prosecute James Comey for protected speech. Let's show our support for anyone who is being unfairly and illegally pursued, persecuted, and prosecuted by this regime. Be mad. Be outraged. Demand true accountability. Show support. I know some of you are still bitter about the James Comey thing. I get it. But in this instance, in this instance, there's a much higher, higher issue that has to prevail, and that is the protection of the rule of law. I'm off to rattle cages. Katie Feng here. We launched the Katie Feng News Channel in partnership with the Midas Touch Network, so we could bring you the latest in legal and political news. Straight, no chaser. So if you're a fellow truth teller, hit that subscribe button and share the word about this channel so we can build a high information America together.