Legal expert John Hinderaker said a malicious Instagram post by former FBI Director James Comey is not a crime despite its terrible nature.
The case highlights the legal tension between protected speech and criminal threats, as federal prosecutors and legal analysts disagree on what constitutes a direct threat.
Comey was indicted on Tuesday [2] in the Eastern District of Virginia [1] following a criminal investigation into a social media post. Officials said the post displayed the numbers "86 47" [3], which they interpreted as a coded threat against President Donald Trump (R-FL) [4].
Hinderaker, president of the Centre of the American Experiment, said the numbers do mean kill Trump and called the act despicable for a former FBI director. However, he said the post does not meet the legal threshold for a crime because it does not express a specific intent to act.
"It is not illegal to say I wish Trump were dead or to say that somebody ought to kill Trump," Hinderaker said. "It's terrible, but it's not a crime; it is only a crime if you say I’m going…"
President Trump said the Instagram post represents "tremendous danger" [5]. The indictment follows a separate set of legal challenges facing the former director.
The dispute centers on whether the use of coded language like "86 47" [3] constitutes a "true threat" under U.S. law. While officials view the numbers as a call for violence, Hinderaker said that without a stated plan to execute the act, the speech remains protected, albeit malicious, expression.
“"It's terrible, but it's not a crime; it is only a crime if you say I’m going…"”
This case tests the boundaries of the 'true threat' doctrine in the digital age. If the court rules that coded numbers constitute a criminal threat without an explicit statement of intent, it could expand the government's ability to prosecute political speech that uses metaphors or codes to imply violence.
