After James B. Comey posted a photograph of shells on a beach arranged to spell “86 47” — a reference to President Donald Trump, the 47th president — the former FBI director said he believed the image was a political message.
But Trump administration officials quickly accused Comey of something much more serious, saying he had committed a crime and should be jailed.
Homeland Security Secretary Kristi L. Noem, who oversees the Secret Service, described the post on Thursday as a “threat” and a call to assassinate Trump. Tulsi Gabbard, the director of national intelligence, said on Fox News that Comey should be put behind bars. By Friday, the Secret Service had launched an investigation and interviewed Comey in D.C. FBI Director Kash Patel said his agency would “provide all necessary support” as part of the investigation.
Legal experts said in interviews that they doubted Comey’s post would qualify as a genuine threat. Instead, they said, the incident appeared to mark the latest attempt by an administration with a maximalist view of executive power to criminalize or otherwise punish people for speech, protests and other actions traditionally viewed as legally protected in the United States….
Legal analysts and political observers said the focus on speech is meant to intimidate critics and exact political retribution.
“The threat of being investigated is enough to silence many people,” said Brendan Nyhan, a professor of government at Dartmouth College. “The pattern we’re seeing is state power being directed against Trump’s enemies and opponents.”…
What is known as “a true threat is typically defined as a serious expression of an intent to harm another,” said Timothy Zick, a professor at William & Mary Law School and an expert in the First Amendment.
But threats can be murky, Zick said. “The harder cases are the ones that fall into this question of, is this just a form of political rhetoric?” he said. “Is this just a person blowing off steam? Are they making a joke?”
Comey’s post “does not read as a true threat to me,” Zick said, though he noted that anything even perceived as threatening to a president can draw Secret Service attention.
In 2023, the U.S. Supreme Court adopted what is known as a “recklessness” standard for threat cases. True threats of violence are not protected speech under the First Amendment, the court said. But the court ruled that prosecutors must show a defendant acted recklessly and “disregarded a substantial risk that his communications would be viewed as threatening violence.” Otherwise, the court said, law enforcement could have a chilling effect on nonthreatening speech….