47th president

ALEXANDRIA, Va. — Former FBI Director James Comey appeared in court on Wednesday, kick-starting a criminal case against him that legal experts say presents significant hurdles for the prosecution and will likely be a challenge for the Justice Department to win.

Comey, who didn’t enter a plea, was indicted in North Carolina on Tuesday on charges of making threats against President Trump related to a photograph he posted on social media last year of seashells arranged in the numbers “86 47.” The Justice Department contends those numbers amounted to a threat against Trump, the 47th president. Comey has said he assumed the numbers reflected a political message, not a call to violence against the Republican president, and removed the post as soon as he saw some people were interpreting it that way.

The indictment is the second against Comey, a longtime adversary of Trump dating back to his time as FBI director, over the past year. The first one, on unrelated false-statement and obstruction charges, was tossed out by a judge last year. Now prosecutors pursuing the threats case face their own challenge of proving that Comey intended to communicate a true threat or at least recklessly discounted the possibility that the statement could be understood as a threat.

The indictment accuses Comey of acting “knowingly and willfully,” but its sparse language offers no support for that assertion. Acting Atty. Gen. Todd Blanche declined to elaborate at a news conference on what evidence of intent the government has. But broad 1st Amendment protections for free speech, Supreme Court precedent and Comey’s public statements indicating that he did not intend to convey a threat will likely impose a tall burden for the government.

“Here, ‘86’ is ambiguous — it doesn’t necessarily threaten violence and the fact that it was the FBI Director posting this openly and notoriously on a public social media site suggests that he didn’t intend to convey a threat of violence,” John Keller, a former senior Justice Department official who led a task force to prosecute violent threats against election workers, wrote in a text message.

The case was charged in the Eastern District of North Carolina, the location of the beach where Comey has said he found the shells. He is set to make his first court appearance Wednesday at the federal courthouse in Alexandria, Va., the state where he lives.

What the law says on threats

The Supreme Court has held that statements are not protected by the 1st Amendment if they meet the legal threshold of a “true threat.”

That requires prosecutors to prove, at a minimum, that a defendant recklessly disregarded the risk that a statement could be perceived as threatening violence. In a 2023 Supreme Court case, the majority held that prosecutors have to show that the “defendant had some subjective understanding of the threatening nature of his statements.”

Meanwhile, the Supreme Court has found that hyperbolic political speech is protected. In a 1969 case, the justices held that a Vietnam War protester did not make a knowing and willful threat against the president when he remarked that “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J,” referring to President Lyndon B. Johnson. The court noted that laughter in the crowd when the protester made the statement, among other things, showed it wasn’t a serious threat of violence.

Regarding the current case, Merriam-Webster, the dictionary used by the Associated Press, says 86 is slang meaning “to throw out,” “to get rid of” or “to refuse service to.” It notes: “Among the most recent senses adopted is a logical extension of the previous ones, with the meaning of ‘to kill.’ We do not enter this sense, due to its relative recency and sparseness of use.”

Comey deleted the post shortly after it was made, writing: “I didn’t realize some folks associate those numbers with violence” and “I oppose violence of any kind so I took the post down.”

What the government will try to prove

John Fishwick, a former U.S. attorney in the Western District of Virginia, said the government will likely try to prove that Comey should have known better as a former FBI director.

“I think they’re going to try to circumstantially say that you were head of the FBI, you knew what these terms meant and you said them out to the whole world as a threat to the president,” Fishwick said, though he noted that such an argument would be challenging in light of Comey’s obvious 1st Amendment defenses.

Comey was voluntarily interviewed by the Secret Service last year, and the fact that he was not charged with making a false statement suggests that prosecutors do not have evidence that he lied to agents, Fishwick said.

Jonathan Turley, a George Washington University law professor, wrote in an opinion piece published Tuesday that “despite being one of Comey’s longest critics, the indictment raises troubling free speech issues. In the end, it must be the Constitution, not Comey, that drives the analysis and this indictment is unlikely to withstand constitutional scrutiny.”

“If it did,” he added, “it would allow the government to criminalize a huge swath of political speech in the United States.”

Tucker, Richer and Kunzelman write for the Associated Press. Kunzelman reported from Alexandria, Va.

In one of his latest missives on social media, President Trump complained that he wasn’t getting enough credit for “totally destroying the terrorist regime of Iran, militarily, economically, and otherwise.”

“We have unparalleled firepower, unlimited ammunition, and plenty of time,” he wrote of a war that has crippled the global supply of oil, sharply increased gas prices, cost U.S. taxpayers billions, left thousands dead and wounded, and so far defied Trump’s own “short term” timetable.

“Watch what happens to these deranged scumbags today,” Trump added. “They’ve been killing innocent people all over the world for 47 years, and now I, as the 47th President of the United States of America, am killing them. What a great honor it is to do so!”

Again and again in recent days, Trump and other top officials in his administration — notably Secretary of Defense Pete Hegseth — have projected confidence and power in Iran in a coarse and triumphant tone that is unprecedented for U.S. wartime presidents and their Cabinet members, according to experts in presidential rhetoric and propaganda.

They have consistently described the war in terms of how hard the U.S. is hitting Iran, rather than why it must do so. They’ve talked of destroying the Iranian navy and air force, wiping out its leadership and making the U.S. “more respected” globally than it has ever been, including by showing no mercy.

“This was never meant to be a fair fight, and it is not a fair fight. We are punching them while they’re down, which is exactly how it should be,” Hegseth said.

Missing is the solemnity of past wartime leaders facing dead U.S. soldiers, a recalcitrant enemy and a precarious tactical position, replaced by a message of U.S. mercilessness — of contempt for Iran rather than concern for its civilians or a focus on the American ideals that U.S. presidents have long tried to rally the world around, especially in times of war.

“At a time when people can see the effects of the war when they fill up their gas tank, and when there have been American casualties, the triumphalist tone is just not something a president normally does,” said Robert C. Rowland, a professor of rhetoric at the University of Kansas and author of the book “The Rhetoric of Donald Trump: Nationalist Populism and American Democracy.”

“Many presidents wouldn’t have that tone for personal moral reasons,” Rowland said, “but they also know that it can backfire when things don’t go well.”

James J. Kimble, a communication professor and propaganda historian at Seton Hall University, said U.S. presidents have “by and large” struck a respectful tone in wartime, though there are some exceptions. President Truman, justifying dropping atomic bombs on Japan, wrote that “when you have to deal with a beast, you have to treat him as a beast,” while the U.S. produced World War II posters designed to “demonize and dehumanize the German enemy,” he noted.

Still, Trump’s messaging — including his “expressing glee at the death of foreign combatants” — has been “much coarser,” Kimble said.

“It’s moving beyond the idea of defeating the enemy on the field of battle, and more into a kind of defeat as humiliation — intentional humiliation,” he said. “It’s schoolyard bullying, along with the physical violence.”

Asked about Trump’s rhetoric, Anna Kelly, a White House spokeswoman, said Trump “will always be proud to recognize the incredible accomplishments of our brave service members.”

“Under the decisive leadership of President Trump, America’s heroic war fighters are meeting or surpassing all of their goals under Operation Epic Fury,” she said. “The legacy media wants us to apologize for highlighting the United States military’s incredible success, but the White House will continue showcasing the many examples of Iran’s ballistic missiles, production facilities, and dreams of owning a nuclear weapon being destroyed in real time.”

Trump has built his political career around blunt rhetoric, and his messaging on Iran has drawn applause from his supporters. Polling has shown the public is heavily divided on the war — drawing far less public support than past wars, but broad support from Republicans.

White House Press Secretary Karoline Leavitt has accused the media of ignoring “clear” objectives that the president and others have set for the war effort, including wiping out Iran’s missile systems, preventing it from developing a nuclear weapon and stopping what Trump had a “feeling” was a coming attack on the U.S.

However, Trump and Hegseth have themselves strayed from that framework with their brash rhetoric, and their focus on the killing of Supreme Leader Ayatollah Ali Khamenei and other Iranian leaders.

Trump has dismissed reports that the U.S. bombed an Iranian school full of children by suggesting that Iran may actually have been responsible, despite reported findings by U.S. intelligence that it was an American attack.

Hegseth has added to concerns about careless U.S. bombing by expressing disdain for wartime rules designed to limit civilian casualties, calling them “stupid rules of engagement.”

“Our war fighters have maximum authorities granted personally by the president and yours truly,” Hegseth said. “Our rules of engagement are bold, precise and designed to unleash American power, not shackle it.”

The White House has also pushed out a wave of wartime propaganda on social media, often striking the same irreverent, bullish tone, experts noted.

One video interspersed movie clips of superheroes and soldiers with real footage of Iranian targets getting blown up, under the words, “JUSTICE THE AMERICAN WAY.” The clip drew condemnation, including from the actor Ben Stiller, who objected to the inclusion of footage from his film “Tropic Thunder,” saying, “War is not a movie.”

Hegseth’s bravado has also been caricatured on “Saturday Night Live,” which opened two weeks in a row with a satirical portrayal of him as angry, dimwitted and hyped up on the violence of war.

All of it has come against a backdrop of Islamophobic remarks from members of Congress on X, with Rep. Andy Ogles (R-Tenn.) writing that “Muslims don’t belong in American society” and Sen. Tommy Tuberville (R-Ala.) posting a picture of the 9/11 terrorist attack next to an image of New York City Mayor Zohran Mamdani, who is Muslim, and writing “the enemy is inside the gates.”

Certainly Iranian leaders have expressed similar contempt for the U.S. for years. Khamenei, killed at the start of the war, was known for stoking anti-American sentiment, speaking to crowds amid chants of “death to America.”

However, U.S. presidents have traditionally spoken with more reserve. They have slammed U.S. enemies, but often by drawing a contrast between them, the U.S. and the values the U.S. purports to defend globally. They have expressed confidence in past U.S. missions, but been wary of taking a celebratory or triumphant tone — especially at the start of a war, amid intense fighting, as American troops are still dying.

Not so with Trump, who on Wednesday said, “You never like to say too early you won. We won. We won … . In the first hour, it was over.”

He also said, “Over the past 11 days, our military has virtually destroyed Iran,” and “they don’t have anything.”

On Thursday, six U.S. service members were killed when a refueling aircraft crashed in Iraq. On Friday, the U.S. military announced it was sending 2,500 Marines and an additional U.S. warship to the conflict.

Kimble said there are several ways to view Trump’s war rhetoric. One is “through the lens of PSYOPS, or psychological operations” — or intentional messaging aimed at discouraging the enemy, akin to the U.S. dropping leaflets in World War II telling foreign combatants that they must surrender or die. In that view, Trump is speaking directly to the Iranians, trying to get them to “perceive victory as impossible.”

Another is to view Trump and Hegseth as projecting a tough image for their MAGA base, their Democratic rivals and any other nations they might be preparing to challenge, such as Cuba.

Rowland said Trump “always has to be the big dog in the room,” and his war messaging should be viewed in that context.

“A lot of the rhetoric is performative cruelty,” Rowland said. “It’s more about him coming across as dominant than it is about making a case that the war has been good for the U.S. and the region and the West and the world.”