There are several “legally persuasive” reasons to say that former FBI Director James Comey is innocent of charges related to his widely-discussed “86 47” post, argues The Bulwark‘s Jonathan V. Last. But there is only one that matters.
Calling the prosecution a “travesty,” Last says it is important to identify several factors that some have proposed.
“Comey is not innocent because Republicans have spoken the same way about Democrats. His defense is not whataboutism,” writes Last.
“Comey is not innocent because he made a death threat and then claimed to just be joking. His defense is not ‘just kidding,'” he adds. And “Comey is not innocent because he was merely calling for metaphorical violence against the president. His defense is not the First Amendment.”
But Comey is “legally and morally innocent,” posits Last.
Why?
Because, “there is no rational universe in which the phrase ’86 47’ can be taken to mean anything other than a call to retire or get rid of President Trump,” he says. “There is no rational universe in which it is associated—even in an arcane or euphemistic way—with violence of any sort.”
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Last argues that it would be “bad” had Comey made “allusions to violence,” even if it were not unlawful. “People like Comey,” he says, a former FBI director and officer of the court, have a “civic obligation” to not use violent rhetoric or “speak loosely about encouraging violence,” even if they are within their legal rights to do so.
But Last makes clear — as have others — that what Comey did was use a term, “86” that “comes from the hospitality industry and refers to being out of something—a dish, a beer, wine, breadsticks.”
He suggests that unless the Trump DOJ can come up with “some extremely important facts not in evidence” then what the former FBI chief did was legal, “but also well within the bounds of wisdom and civility.”
Last concludes that Comey “is entirely innocent—legally, morally, and prudentially,” and therefore, the prosecution of Comey is “manifestly totalitarian.”
On Sunday, The New York Times reported that acting Attorney General Todd Blanche was asked on NBC’s “Meet the Press” if others who in some way have promoted the “86 47” phrase would also be prosecuted.
“The ’86 47′ message, Mr. Blanche said, is ‘posted constantly — that phrase is used constantly.'”
“Every one of those statements do not result in indictments,” Blanche said.
But he also argued that “other evidence” has been collected, “which he said he could not describe.”
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