The DOJ just questioned the legal theory of ’86 47′ Z News

You know when a wide receiver burns the D so badly that NFL Hall of Famer Randy Moss makes the play on the ESPN segment “YOU GOT MOSSED,” you know you’re in for a good time? Yeah, that’s what happened to the Justice Department yesterday in the District of Columbia. Except instead of a football field, it was a federal courtroom. And instead of a wide receiver, it was U.S. District Judge Randolph Moss who systematically dismantled the DOJ’s central legal theory in the Comey “86 47” indictment (in a completely different case) before the Comey trial even began.

You have Mossed, Todd Blanche. You are Mossed.

Here is the context. We’ve been covering the Comey shell saga since its beginning, in which the former FBI director posted a photo of shells on a beach marked “86 47,” captioned “Cool shell formation on my beach walk,” and Trump’s DOJ ruled it a federal crime. The second indictment, announced with great fanfare by Acting AG Todd Blanche during a completely staged press conference, accused Comey of threatening the President, while Blanche later attempted to distance himself from the entire matter, claiming that he did not even know the names of the prosecutors involved, a claim somewhat complicated by the fact that he had personally introduced them by name at said press conference.

Regardless, the Comey trial won’t happen until October, but the DOJ just suffered a blow it didn’t see coming.

A separate case, Liability NOW USA v. National Park Serviceinvolved a progressive protest group flying an “86 47” flag during an impeachment demonstration outside a Washington, DC courthouse. The Secret Service opened an investigation and the DOJ submitted a statement from Deputy Secret Service Director Matthew Quinn saying the sentence was a “potential call for acts of violence directed against the President of the United States.” They attempted to have the group’s protest permit revoked, giving rise to immediate litigation.

But Judge Moss I was not impressed with the legal theory of government.

“Although the Court recognizes the importance and difficulty of the Secret Service’s mission, the First Amendment does not permit the Government to censor political speech, which no reasonable observer would consider, in context, to convey a threat of violence, simply because the speaker uses a phrase that, in addition to other more common meanings, has been used to refer to an act of violence,” Moss wrote, granting the group a temporary restraining order and barring the Park Service nationals to withdraw their license.

He went further. On what “86” actually means, the judge relied on Merriam-Webster, which defines “86” — originating from 1930s soda counter slang — as “throw away,” “dispose of” or “refuse to serve.” Although Merriam-Webster notes that some have defined the phrase as “to kill,” it does not include that definition “because of its relative recency and rarity of use.” I’m sure Comey’s lawyers are taking plenty of notes.

And because context matters, the judge ruled that the flag, flown outside a courthouse during an impeachment protest and devoid of any violent imagery, supports the claim that it is not a threat. Kind of like the fact that shells, no matter their configuration, are hard to see as a threat.

“In short, the record contains compelling evidence supporting Plaintiff’s claim that he displayed the flag simply to seek the impeachment of President Trump, but contains no evidence supporting Defendants’ contention that the flag posed a real threat to the life or physical well-being of the President of the United States.”

Of course, as compelling as this may be, none of this is binding on the Eastern District of North Carolina criminal court where Comey’s case will be tried. But the DOJ’s entire theory in the Comey case rests on the assertion that a reasonable person would interpret “86 47” as a threat of violence against the president, and it is… quite the opposite.

Read the full decision below.