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The Comey indictment could be upended by this 2015 Supreme Court precedent
The high court a decade ago explicitly overturned the legal standard that prosecutors are now citing to charge Comey with threatening President Trump.
The Comey indictment could be upended by this 2015 Supreme Court precedent www.washingtonpost.com/national-sec...
— Timothy McBride (@mcbridetd.bsky.social) 2026-05-01T00:24:04.224Z
https://www.washingtonpost.com/national-security/2026/04/30/comey-indictment-supreme-court-precedent
The criminal indictment of former FBI director James B. Comey for allegedly threatening President Donald Trump appears to fall short of a standard articulated by Chief Justice John G. Roberts Jr. in a 2015 opinion, when the Supreme Court pointedly distinguished a genuine threat from mere speech, legal analysts say.
Roberts, along with a majority of the court, ruled in the 2015 case Elonis v. United States that prosecutors seeking to convict someone of sending a dangerous message must prove the person intended to make a violent threat — or at least knew there was a substantial chance it would be viewed as threatening......
The charges focus on a photo that Comey posted last year showing seashells on a beach arranged to spell out “86 47.” Because 86 can signify “to get rid of,” and President Donald Trump is the 47th president, prosecutors say the shells’ arrangement means “a reasonable recipient” would interpret the message as “a serious expression of an intent to do harm” to Trump.
But that language is from an older, lower legal standard, one that the Supreme Court explicitly overruled in the 2015 case. Eight legal experts interviewed for this article said the Comey indictment fails to provide evidence that the former FBI director intended his social media message as a genuine threat to the president.
Under court rules, prosecutors are obligated to shape the language of their charges to conform with the current state of the law......
“The indictment lacks an essential element of a true threat crime — mainly that the speaker intended to threaten violence, or acted in conscious disregard of the substantial risk that their communication would be viewed as threatening,” said Cole, a former national legal director of the American Civil Liberties Union. “They don’t allege any of that in the indictment.”....
In 2015, the Supreme Court had another chance to define what constitutes a threat and what is speech protected under the Constitution — and they set the threshold even higher.
In the Elonis case, which centered on a Pennsylvania man who made potentially threatening statements online, the justices concluded that the mindset of the person who made the comment must be considered. It is not enough for the subject of a comment to view it as a threat, they ruled; the person who made it must have intended it that way.
Eight years later, in Counterman v. Colorado, the Supreme Court reaffirmed Elonis and tweaked the definition a bit, saying prosecutors could also prove that the person making the statement understood that there was a substantial risk the comment would viewed as threatening.
The charges laid out in the Comey indictment, legal analysts said, do not allege that this threshold was met. Instead, the indictment cites the legal standard laid out in the Supreme Court’s Watts opinion, one it subsequently overturned......
Prosecutors appeared to nod to the higher standard in the indictment, alleging that Comey “knowingly and willingly” threatened the life of the president. But legal analysts interviewed said that language alone does not meet the legal standard set by the Supreme Court.
Roberts, along with a majority of the court, ruled in the 2015 case Elonis v. United States that prosecutors seeking to convict someone of sending a dangerous message must prove the person intended to make a violent threat — or at least knew there was a substantial chance it would be viewed as threatening......
The charges focus on a photo that Comey posted last year showing seashells on a beach arranged to spell out “86 47.” Because 86 can signify “to get rid of,” and President Donald Trump is the 47th president, prosecutors say the shells’ arrangement means “a reasonable recipient” would interpret the message as “a serious expression of an intent to do harm” to Trump.
But that language is from an older, lower legal standard, one that the Supreme Court explicitly overruled in the 2015 case. Eight legal experts interviewed for this article said the Comey indictment fails to provide evidence that the former FBI director intended his social media message as a genuine threat to the president.
Under court rules, prosecutors are obligated to shape the language of their charges to conform with the current state of the law......
“The indictment lacks an essential element of a true threat crime — mainly that the speaker intended to threaten violence, or acted in conscious disregard of the substantial risk that their communication would be viewed as threatening,” said Cole, a former national legal director of the American Civil Liberties Union. “They don’t allege any of that in the indictment.”....
In 2015, the Supreme Court had another chance to define what constitutes a threat and what is speech protected under the Constitution — and they set the threshold even higher.
In the Elonis case, which centered on a Pennsylvania man who made potentially threatening statements online, the justices concluded that the mindset of the person who made the comment must be considered. It is not enough for the subject of a comment to view it as a threat, they ruled; the person who made it must have intended it that way.
Eight years later, in Counterman v. Colorado, the Supreme Court reaffirmed Elonis and tweaked the definition a bit, saying prosecutors could also prove that the person making the statement understood that there was a substantial risk the comment would viewed as threatening.
The charges laid out in the Comey indictment, legal analysts said, do not allege that this threshold was met. Instead, the indictment cites the legal standard laid out in the Supreme Court’s Watts opinion, one it subsequently overturned......
Prosecutors appeared to nod to the higher standard in the indictment, alleging that Comey “knowingly and willingly” threatened the life of the president. But legal analysts interviewed said that language alone does not meet the legal standard set by the Supreme Court.
I really had fun reading this legal analysis. I quoted the Watts case in some other posts. Here is clear that this indictment is using a standard that the SCOTUS has rejected and that this indictment would fail under the current state of the law as announced by SCOTUS. This indictment was issued in bad faith and will not survive pass a motion to dismiss.
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This case is so stupid that Blanche, Patel and the attorney who signed the indictment need to be disbarred or sanctioned. There is existing SCOTUS authority that this statement is protected by the First Amendment. The SCOTUS opinion dealt with a less ambiguous compared to the 8647 being used here
Here is one of the cases that was discussed in the OP
https://firstamendment.mtsu.edu/article/watts-v-united-states/
Court said anti-war protester’s threat was crude political hyperbole
On further appeal, the Supreme Court reversed in a 5-4 per curiam opinion. The majority determined that the federal statute prohibiting threats against the president was constitutional and that true threats receive no First Amendment protection.
However, the majority also determined that Watts’s crude statements were political hyperbole rather than true threats. “What is a threat must be distinguished from what is constitutionally protected speech,” the majority wrote. “The language of the political arena … is often vituperative, abusive, and inexact.”
The Court agreed with Watts’s counsel’s characterization of Watts’s speech as “a kind of very crude offensive method of stating a political opposition to the President” that did not qualify as a true threat.
Justice William O. Douglas concurred in an opinion that would have gone further than the per curiam majority opinion and invalidated the federal statute. “Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution,” he concluded. Justice Abe Fortas, joined by John Marshall Harlan, dissented in a very short opinion questioning whether the Court should have taken the case.
On further appeal, the Supreme Court reversed in a 5-4 per curiam opinion. The majority determined that the federal statute prohibiting threats against the president was constitutional and that true threats receive no First Amendment protection.
However, the majority also determined that Watts’s crude statements were political hyperbole rather than true threats. “What is a threat must be distinguished from what is constitutionally protected speech,” the majority wrote. “The language of the political arena … is often vituperative, abusive, and inexact.”
The Court agreed with Watts’s counsel’s characterization of Watts’s speech as “a kind of very crude offensive method of stating a political opposition to the President” that did not qualify as a true threat.
Justice William O. Douglas concurred in an opinion that would have gone further than the per curiam majority opinion and invalidated the federal statute. “Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution,” he concluded. Justice Abe Fortas, joined by John Marshall Harlan, dissented in a very short opinion questioning whether the Court should have taken the case.
