STEVE INSKEEP, HOST:
Let's talk a bit more about a pattern that's developing. President Trump wages a campaign against perceived enemies. Somebody at the Justice Department then gets a grand jury to indict James Comey. And then we call up Benjamin Wittes, who is editor of the policy analysis website Lawfare, a senior fellow at the Brookings Institution and also, we should disclose, a friend of James Comey. Mr. Wittes, welcome back.
BENJAMIN WITTES: We got to stop meeting like this, Steve.
INSKEEP: (Laughter) We brought you in for the last Comey indictment, and I went back and looked. You were unimpressed. Is this indictment any stronger?
WITTES: Actually, it's even dumber. So that one was about lies Jim Comey didn't tell to Congress. And this one is about a threat he didn't make to the president of the United States made in a public Instagram post of a type that lots of people do every day, which is to say, you know, some kind of political rhetoric suggesting we should get rid of a president. And it's exactly the kind of thing that people do all the time. And in fact, there are lots of, you know, 86 46 anti-Biden shirts available on Amazon. And as far as I know, nobody's ever been arrested for wearing one. And so, yeah, I think it is safe to say this one is even dumber than the last one.
INSKEEP: Let's look at the text here, though, the argument that's made. The indictment, when I read it, it's not very long. You can go and read it. It says, quote, "a reasonable person familiar with the circumstances would interpret this as a serious expression to do harm." I don't think you think it's a serious expression to do harm, but let's just talk about the - what the standard is. Is that the legal standard for indicting somebody, that a reasonable person would interpret this as a threat?
WITTES: Yeah. So the Supreme Court's doctrine on this involves what's called a true threat. And a true threat - to be not First Amendment-protected and to be a true threat, something has to be understandable by a reasonable person as actually stating an intent to do harm. And so the question is, if you read - if you see an Instagram post by Jim Comey with some seashells arranged in the shape of 86 47, do - would a reasonable person look at that and say, Jim Comey is planning to assassinate the president or planning to, you know, do something, do violence to the president? And Todd Blanche and the Justice Department and - apparently convinced a grand jury that the answer to that was yes. I cannot imagine that any federal judge or any jury hearing the full circumstances of the case, including the facts which were not included in the indictment, which was that Comey took the post down and apologized...
INSKEEP: Yeah.
WITTES: ...When it was pointed out to him that sometimes the term 86 is used in mob contexts to mean rub somebody out.
INSKEEP: Got it.
WITTES: You know, usually, it's used more in the context of a bar or a diner, like to say, you know, 86 that guy, meaning throw them out of the diner.
INSKEEP: Let me ask you about another word you used there. You talked about intent. Acting Attorney General Todd Blanche was asked how you would prove what Comey's intent was, and here is his response.
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TODD BLANCHE: How do you prove intent in any case? You prove intent with witnesses, with documents, with the defendant himself to the extent it's appropriate. And that's how we'll prove intent in this case.
INSKEEP: We don't know what documents and so forth he's talking about, but does he have to prove that Comey intended to threaten or kill the president?
WITTES: Well, I think he has to prove that a reasonable person would understand the communication that way. You know, the defendant's intention is part of that. But the more significant question is, how would somebody on the receiving end of the communication understand that?
INSKEEP: Can you envision a motion to dismiss here?
WITTES: I can envision several motions to dismiss. One will be a motion to dismiss based on selective or vindictive prosecution. And we've already seen that in the Eastern District of Virginia during the last case. It never got ruled upon, but it will be back, I'm sure. Another is a motion to dismiss on the basis that this is First Amendment-protected speech. And you can expect, I think, both of those to be filed relatively quickly.
INSKEEP: Benjamin Wittes, a pleasure. Thanks so much.
WITTES: Always a pleasure, even under weird circumstances. Transcript provided by NPR, Copyright NPR.
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