Apr.29

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Dem 47

   

GOP 53

Auditions for AG Are in Full Swing

After Pam Bondi was fired as AG, Todd Blanche was named her acting replacement. He would like the top job, as you may have heard, which means he needs to demonstrate to Donald Trump that he (Blanche) can out-sycophant even Bondi. That is no small task, but Blanche took a big step in that direction yesterday, announcing that he has secured a second indictment of former FBI Director James Comey, and that there is now a warrant out for Comey's arrest.

The first Comey indictment—which went nowhere, of course—was predicated on the claim that he gave false testimony to Congress about the Trump-Russia investigation. This indictment, by contrast, is based on... a social media post. Readers will probably recall that, last year, Comey posted this to his Instagram feed:

It was accompanied by the note "Cool shell formation on my beach walk." At the time, Donald Trump, MAGA and Fox pitched a hissy fit, and asserted that Comey was threatening the president's life. Comey deleted the post, replaced it with a garden-variety apology, and that was that. Well, at least until he was indicted yesterday for: (1) making a threat against the president, and (2) communicating that threat across state lines.

It is really something that the grand jury in eastern Carolina (where the picture was taken) actually signed off on this indictment. Blanche, along with the flunky who actually signed the indictment, Asst. U.S. Attorney Matthew R. Petracca, must know their case is full of gaping holes. A rundown of some of the biggies:

• What Does 8-6-4-7 Mean?: "86," of course, is understood to mean "get rid of." And "47" is understood to mean "Donald Trump" (i.e., the 47th president). However, even if we grant that is Comey's meaning, assassination is not the only way to get rid of a president. He can be removed via the Twenty-Fifth Amendment. He can be impeached and convicted. He can be voted out of office. And these more benign meanings are more consistent with the implied meaning of "86" as opposed to "kill." If someone specifically wanted to use numbers to call for Trump's assassination, the correct numbers to use would be 1-8-7-4-7. In California, 187 is the penal code for murder. And thanks to West Coast/Gangsta Rap, it entered the lexicon as a synonym for "murder.
  
  And note that while Comey did say, after the firestorm of controversy, that the message was "political," he does not appear to have confirmed that his intended meaning was the obvious one. Presumably it was, but "presumably it was" does not get it done in a court of law. You have to have proof beyond a reasonable doubt. Comey could say he intended to draw attention to, say, the housing for military veterans located at 8647 B Burwell St. SW in Washington, DC. Or he could ascribe many dozens of other meanings to "8647."
  
  
• A Threat?: Part of the standard in a case like this, president or no, is that a reasonable person would have to interpret the message/action as a threat. Given the many possible meanings of the image, this is a high bar to overcome in this case.
  
  
• Imminent?: Another part of the standard in a case like this, president or no, is that the threat has to be imminent. The law draws a distinction between, say, "Someone should shoot Donald Trump" (legal, protected by the First Amendment) and "Someone should shoot Donald Trump tomorrow, while he's speaking to steel workers" (illegal). The former is understood to be likely hyperbole, the latter to be a specific and credible threat of violence.
  
  
• Not My Photo: Comey did not arrange the seashells, he merely took a picture of them. That adds another layer to the equation. Imagine someone walking around in front of the White House with a big sign that says, "Someone please shoot Donald Trump right now!" That's likely an illegal threat. Now, imagine taking a picture of that person and posing it to social media. The photographer is just documenting things, like a historian or journalist would, not necessarily embracing any particular point of view.

Again, we assume Blanche knows all of this. That said, he went to Brooklyn Law School, whose most famous alumnus is... Vinny Gambini. So, maybe not. Certainly Comey, who is also a lawyer (University of Chicago), knows these things.

This will presumably be laughed out of court, just like the last Comey v. United States case was. And we would guess, Blanche doesn't really care. By that time, he'll either have been promoted to AG or he'll have been passed over. This is clearly a short-term play, one made with the full knowledge that: (1) rival wannabe-AG Jeannine Pirro just surrendered on Jerome Powell, and (2) there is some time pressure on Trump to get a nominee to the Senate ASAP, before summer breaks/campaign season/the possible loss of GOP control of the upper chamber can come home to roost. At the moment, Blanche is being coy about whether or not he's willing to make arrangements to allow Comey to surrender voluntarily. Clearly, the wannabe AG desperately wants a perp walk, for maximum drama. He knows full well that a picture of that sight would make its way to Trump's First-Amendment-hating social media site at light speed.

Blanche is playing with some fire here. Before the first indictment was dismissed, Comey had filed a motion for vindictive and selective prosecution and it sure looked like the judge was going to rule his way. But then a different judge ruled that Lindsey Halligan was unlawfully appointed so that motion was moot. Now Comey has even more grounds for that motion and if he prevails, the government will have to pay Comey's attorneys fees and sanctions could be imposed on Blanche. It's not a good look for someone who presumably wants a job once Trump is out of office.

Further, bringing frivolous prosecutions is a violation of legal ethics, and can lead to disbarment. And unlike Bondi, who is licensed in the maybe-friendly-to-her-politics Florida, Blanche is admitted to the bar in New York State. So, not so friendly an audience. He's also been waging war against the ABA in other ways, which is certainly not going to help him if he ever ends up at a disciplinary hearing. We guess it's another case of someone willing to sacrifice themselves on the altar of Trump, thinking (almost always naively) that it will be different this time, and Trump would never cast them aside when he no longer has any use for them.

And as long as we are talking auditions, what exactly do you think is going on with FCC Chair Brendan Carr? As we noted yesterday, Jimmy Kimmel made a joke last week that gave the Trump family the sads. The Trumps soiled themselves over this, and fired back on social media. Carr knows his cue when he hears it, and so yesterday announced that the eight Disney-owned broadcast TV stations (the ABC outlets in Chicago, Fresno, Houston, Los Angeles, New York, Philadelphia Raleigh-Durham and San Francisco) would be required to submit their license renewal paperwork early, so that the FCC has time for an extra thorough review of their applications.

Obviously, Carr is trying to create some leverage here, so he can then try to compel Disney/ABC to do his bidding. As with the Comey prosecution, we don't see how this can plausibly conclude in a way that will please Trump. Disney does not have any pending mergers right now, and surely all the big media providers have learned the lesson of The Wall Street Journal, The New York Times, Comey, Letitia James, Harvard University, Iran, etc., namely that the only correct option is to stand up to Trump, et al. If you fold, then the administration just comes back for more. If you stand up for yourself, the administration folds (or loses in court). Disney should have no trouble tying this up in court for a very long time, and then winning should it actually get before a judge and/or jury. The law is very clear that content that makes the president feel cranky is covered by the First Amendment, and does not rise to the level of obscenity or any other corm of legally censorable speech.

It could be that Carr is just a True Believer, and is pulling all these stunts because it gives him a MAGA high. But he sure looks like another one of these folks who is auditioning for a promotion. It's just that, in contrast to Blanche, we can't figure out what that promotion might be. Does he want to move over to the Cabinet? If so, well, he does have a law degree (Catholic University of America), so maybe he is thinking AG, too. Or maybe an ambassadorship, like to the Vatican. Or perhaps he wants to run for Congress, and would sure love Trump's backing. Or... something else?

It would be really nice if the high-ranking members of the executive branch were guided, first and foremost, by the question of: "Is this what is best for the country?" Another good choice would be: Obey the Constitution and the law. But that is not the world we live in, unfortunately. (Z & L)