"The two charges stem from a photo that Comey posted online showing seashells on a beach that were arranged to write out '86 47.'"

"Trump is the 47th president; '86' can mean banning or removing someone, but it can also be slang for killing a person. Comey quickly removed the post after receiving criticism that the phrase could be used to communicate the threat of violence."

From "James Comey indicted over 2025 social media post allegedly threatening Trump/The former FBI director issued a video statement maintaining his innocence and criticizing the current Justice Department" (WaPo).

Here's the post I wrote last year when Comey purported not to "realize some folks associate those numbers with violence": "James Comey purports not to have known that 86 means to get rid of (after he posted a picture of rocks in the form 8647 (47 being easily read as a reference to Trump)). Is Comey credible?"

The post title was a Grok prompt. Additional prompts: "Compare that to how Trump was treated for telling protesters on January 6th, 2021 to walk 'peacefully and patriotically' to the Capitol" and "I'm interested in the difference in seeing violence in words and consider that Comey, like Trump, has loyalists who might hear direction and take it."

"In the not-too-distant past, most people probably would have at least grudgingly accepted a regime in which prosecutors and law-enforcement agents sorted through materials from a sprawling investigation..."

"... and made public only those portions needed to properly handle a case. The additional information that might interest us, and perhaps even help improve society, would remain secret. Federal prosecutors could generally be trusted to focus on their narrow criminal enforcement mission and to not abuse the tools given them for that limited purpose. No longer.... [S]o much of the raw investigative material in [the files] — untold layers of hearsay, unverified accusations and vague circumstantial connections — ought not be released for the public to pick over.... When materials collected in a criminal investigation get released in bulk for public consumption, the justification for the coercive and privacy-invading tools we give investigators gets a lot weaker...."

Writes former federal prosecutor Daniel Richman, in "The Epstein Files Should Never Have Been Released" (NYT).

"[I]t is now clearly established that I cannot be prosecuted for saying, in this essay, 'Members of the military have not only the right, but the obligation, to refuse illegal orders.'"

"Nor could I be prosecuted for stating, as I also have, that the orders to kill suspected drug smugglers are illegal. The First Amendment protects all such statements. Indeed, it protects explicit calls for illegal conduct unless the speech is both intended and likely to incite imminent illegality, a standard rarely met, and one not even approached by Senator Kelly’s words...."

Writes David Cole, in "Mark Kelly Is Being Investigated for Telling the Truth" (NYT)(gift link, so you can read the whole thing, including the part that rejects the idea that Kelly has less free speech because he's a retired member of the military).

"Interesting legal questions aside, the trial took on a dadaist sheen, befitting the act itself."

"The juror told me that she and her fellow jurors used words like absurd, laughable, and waste of government money. 'We’re supposed to be looking at the evidence, but a clear majority felt it was nonsensical, like Don’t waste our time or money,' she said."

I'm reading "Inside the Sandwich Guy’s Jury Deliberations/Can a flung sandwich cause bodily harm?" (The Atlantic)(gift link).

"At one point, sandwiches were served for lunch, an irony not lost on a jury spending hours contemplating the many possible uses of the breaded form (nutrition, satiety, projectile). 'Then we had lots and lots of jokes about the condiments,' the juror told me...."

The word "nullification" does not appear in the article. "Ultimately, the juror said the group decided the case on its merits..."

"Baltimore’s top prosecutor is no longer seeking to vacate the murder conviction of Adnan Syed, the man whose case garnered national attention in the 'Serial' podcast..."

"...over a decade ago. In a new filing Tuesday evening, Baltimore City State’s Attorney Ivan Bates withdrew a motion to vacate Syed’s conviction filed in 2022 by previous state’s attorney Marilyn Mosby, saying the original motion contains 'false and misleading statements.'... Syed was convicted in 2000 for the 1999 murder of his then-high school classmate and ex-girlfriend Hae Min Lee... Last August, the Maryland Supreme Court upheld a lower appellate court’s decision to reinstate Syed’s conviction, ruling that the rights of Lee’s family were violated because her official representative, her brother Young Lee, was not properly notified of the 2022 hearing to vacate the conviction...."

From "Baltimore prosecutors give up fight to vacate Adnan Syed’s murder conviction ahead of hearing to reduce his prison sentence" (CNN).

"On her first day in office, [Attorney General Pam Bondi] announced the creation of a 'Weaponization Working Group,' purportedly intended to root out 'abuses of the criminal justice process'..."

"... by local and federal law enforcement officers, including those who had investigated Mr. Trump. Current and former Justice Department officials view those claims as merely an excuse to justify the brazen politicization of the department under Mr. Trump and his team. It has left many employees angry and worried for the department’s future. The [Eric] Adams case brought those concerns to a head. One veteran prosecutor told a friend late Thursday that he was not answering phone calls, in hopes of avoiding a demand to take an action that would force his resignation...."

From "Trump Official’s Demand in Adams Case Forces Justice Dept. Showdown/A crisis at the department over the Eric Adams case is an early test of the criminal justice system’s resilience against a retribution-minded president and his appointees" (NYT).

"Never again will the immense power of the state be weaponized to persecute political opponents — something I know something about."

"We will not allow that to happen. It will not happen again. Under my leadership, we will restore a fair, equal, and impartial justice under the constitutional rule of law."

Said President Trump, in his inaugural address today.

"Fani Willis disqualified from Trump's Georgia election interference case."

 Axios reports.

"Even if [Daniel] Penny’s found innocent on all charges, his ordeal still sends a grim message to all New Yorkers remains: Don’t think about standing up to protect the innocent."

"And this is far from Bragg’s only outrage. Consider his prosecution of Jose Alba, the bodega clerk attacked in his workplace who accidentally killed in self-defense — the charges dropped only when the 'optics' got bad. Or Bragg’s two-years-belated indictment of a cop for punching an unruly perp (who wasn’t harmed) he was escorting out of an Upper West Side Apple Store. Or the charges against Scotty Enoe, a CVS worker, who stabbed a serial shoplifter to death after the homeless man pulled the knife on him. This DA sides with the perps every time — and against those who resist them. Not to mention the resources wasted on his ultimate political persecution: the ridiculous pursuit of now-President-elect Donald Trump over 2017 book-keeping entries that supposedly tampered with the 2016 election...."

Writes the NY Post Editorial Board in "Daniel Penny trial: Alvin Bragg is a menace to our society and must GO."

"Deranged Jack Smith is fighting for Lyin’ Kamala. LOST BIG IN FLORIDA! Justice Department is a political weapon. Never happened in USA before! MAGA2024."

Trump reacts — on Truth Social — to a legal commentator on CNN.

The commentator is Elie Honig, who put his opinion in a New York Magazine piece, "Jack Smith’s October Cheap Shot," which I blogged here, 4 days ago.

Watch the CNN interview:

🚨BREAKING:

A CNN legal analyst just DESTROYED Jack Smith and Judge Chutkan for what appears to be political motivation in releasing the 165-page brief.

A legal analyst, who has handled thousands of cases, stated that he has NEVER witnessed such an occurrence before. He also… pic.twitter.com/7a5ZHa3hmJ

— Gunther Eagleman™ (@GuntherEagleman) October 7, 2024

"[Jack] Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice — so long as he gets to chip away at Trump’s electoral prospects."

"At this point, there’s simply no defending Smith’s conduct on any sort of principled or institutional basis. 'But we need to know this stuff before we vote!' is a nice bumper sticker, but it’s neither a response to nor an excuse for Smith’s unprincipled, norm-breaking practice. (It also overlooks the fact that the Justice Department bears responsibility for taking over two and a half years to indict in the first place.)..."

Writes former federal and state prosecutor Elie Honig, in "Jack Smith’s October Cheap Shot" (in New York Magazine).

The way motions work... is that the prosecutor files an indictment; the defense makes motions (to dismiss charges, to suppress evidence, or what have you); and then the prosecution responds to those motions.... [Smith] asked Judge Chutkan for permission to file first.... Trump’s team objected, and the judge acknowledged that Smith’s request to file first was “procedurally irregular” — moments before she ruled in Smith’s favor, as she’s done at virtually every consequential turn.

Smith has complained throughout the case that Trump’s words might taint the jury pool.... Yet Smith now uses grand-jury testimony (which ordinarily remains secret at this stage) and drafts up a tidy 165-page document that contains all manner of damaging statements about a criminal defendant, made outside of a trial setting and without being subjected to the rules of evidence or cross-examination, and files it publicly, generating national headlines. You know who’ll see those allegations? The voters, sure — and also members of the jury pool....

The Justice Manual — DOJ’s internal bible, essentially — contains a section titled “Actions That May Have an Impact on the Election.” Now: Does Smith’s filing qualify? May it have an impact on the election? Of course. So what does the rule tell us? “Federal prosecutors … may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”

Remember, Smith begged the judge to flip the rules on their head so he could file this document first, and quickly — “any action,” by any reasonable definition — with the election right around the corner.....

"Judge dismisses Alec Baldwin’s ‘Rust’ case/A judge ruled that prosecutors improperly withheld potential evidence from the defense team."

The Washington Post reports. Free-access link.

One of the prosecutors “was aware of the new evidence and yet did not make an effort to disclose it to defense,” Judge Mary Marlowe Sommer said in her ruling. “The state’s woeful withholding of this information was intentional and deliberate.”

From the NYT, "Case Against Alec Baldwin Is Dismissed Over Withheld Evidence/Mr. Baldwin’s involuntary manslaughter trial in the 'Rust' shooting came to a stunning end after the judge left the bench to examine ammunition in the courtroom":

If the accused is guilty, does it matter if the prosecution is political?

I'm rephrasing the question to assist liberals — "liberals" — whose hearts might inappropriately lift when they see the headline "If Trump Is Guilty, Does It Matter If the Prosecution Was Political?"

The piece is by David A. Graham in The Atlantic:

It's not so much that it was a "shouting match." It's what they were shouting about.

The headline at CNN is "Florida hearing in Trump classified documents case devolves into shouting match" (CNN).

But look at this dispute!

[I]n the Mar-a-Lago classified documents case.... Walt Nauta, one of former President Donald Trump’s co-defendants, [was scheduled] to present arguments that special counsel Jack Smith’s team had selectively and vindictively brought charges against him.

But the hearing quickly diverted into a longstanding disagreement over an August 2022 meeting between prosecutor Jay Bratt and Nauta’s defense attorney, Stanley Woodward. Woodward has claimed in court proceedings and filings that Bratt attempted to pressure him into convincing Nauta to cooperate against Trump by threatening to affect a potential judgeship nomination....

"So we’re left with a two-bit case that has devolved into dirty bits, filled with salacious details...."

"Trump came across as a loser in her account — a narcissist, cheater, sad Hugh Hefner wannabe, trading his satin pajamas for a dress shirt and trousers (and, later, boxers) as soon as Stormy mocked him. The man who was the likely source of the 'Best Sex I Ever Had' tabloid headline, attributed to Marla Maples at the time, no doubt loathes Stormy for having described their batrachian grappling, as Aldous Huxley called sex, as 'textbook generic.' Like a legal dominatrix, Stormy continued to emasculate the former president after her testimony, tweeting: 'Real men respond to testimony by being sworn in and taking the stand in court. Oh … wait. Nevermind.' The compelling part of this case is not whether Trump did something wrong with business papers. The compelling part is how it shows, in a vivid way, that he’s the wrong man for the job."

Writes Maureen Dowd in her new column "Donnie After Dark" (NYT).

1. Dowd seems to approve of using the criminal process not for its proper purpose — to enforce specific written law — but to expose and humiliate one's political enemy. Let's look at him in his underwear and sneer at his sexual fumblings, as described by someone who openly hates him — please, emasculate him! — and let's laugh.

2. It's so exciting — sexually and politically — that she doesn't see the downside. The aggressive desire to humiliate and crush him makes him sympathetic and makes you look like a bully. 

3. I'm imagining the jurors talking about this testimony and trying to connect it to the elements of the crime — assuming they can get their mind around what this crime even is. In my vision, they say: What was that Stormy Daniels testimony even about? Why did we have to know what material his pajamas were made out of? Satin! A shiny fabric. Waved about... to distract us.

4. "Batrachian" — it means "Of or pertaining to the Batrachia, esp. frogs and toads" (OED). It wasn't Daniels's adjective. Dowd got it from and credited Aldous Huxley. I found the relevant passage, in his "Point Counterpoint":

‘But what has love to do with it?’ asked Slipe. ‘In Beatrice’s case.’

‘A great deal,’ Willie Weaver broke in. ‘Everything. These superannuated virgins—always the most passionate.’

‘But she’s never had a love affair in her life.’

‘Hence the violence,’ concluded Willie triumphantly. ‘Beatrice has a n*gger sitting on the safety valve. And my wife assures me that her underclothes are positively Phrynean. That’s most sinister.’

‘Perhaps she likes being well dressed,’ suggested Lucy.

Willie Weaver shook his head. The hypothesis was too simple.

‘That woman’s unconscious as a black hole.’ Willie hesitated a moment. ‘Full of batrachian grapplings in the dark,’ he concluded and modestly coughed to commemorate his achievement.

"The dramatic decision to call Ms. Daniels to the stand would carry both possible benefits and definite risks for prosecutors...."

"Her presence would let Mr. Trump’s defense lawyers attack Ms. Daniels as an extortionist.... Ms. Daniels could also offer context about the environment in which she sold her story of their 2006 encounter, which Mr. Trump denies. She was shopping the story as Mr. Trump’s campaign was reeling in 2016 from the disclosure of a recording on the set of Access Hollywood in which he bragged of groping women. Michael Bachner, a New York City defense lawyer not involved in the case, said that if prosecutors did not call Ms. Daniels to testify, 'it would just be a glaring hole' that the defense would question.... Mr. Trump’s lawyers contend that he did not know that the checks he signed for Mr. Cohen were not for legal fees, and that Mr. Cohen and Mr. Trump’s employees were responsible for any false records. They would be likely to portray Ms. Daniels as someone whose only real connection to Mr. Trump was wanting to be a possible contestant on his reality show...."

From "Stormy Daniels, Once Paid to Keep Quiet, Could Testify Against Trump/Ms. Daniels could take the stand this week, allowing jurors to see and hear from the person at the center of the criminal case against the former president" (NYT).

I would think the prosecutors want to avoid calling her:

"Special counsel Jack Smith’s team acknowledged Friday that some evidence in the prosecution of former President Donald Trump for hoarding classified documents at his Florida home..."

"... may not be in the same sequence FBI agents found it when they swept into the Mar-a-Lago compound with a search warrant in August 2022. The concession from prosecutors in a court filing Friday afternoon came after attorneys for one of Trump’s co-defendants asked for a delay in the case because the defense lawyers were having trouble determining precisely where particular documents had come from in the 33 boxes the FBI seized almost two years ago. In their filing, prosecutors acknowledged the government had previously — and incorrectly — told U.S. District Judge Aileen Cannon that the boxes remained 'in their original, intact form as seized'.... In a post on his Trump Social site Friday, Trump [said]... Smith 'and his team committed blatant Evidence Tampering by mishandling the very Boxes they used as a pretext to bring this Fake Case'...."

From "Prosecutors: Docs in boxes seized from Mar-a-Lago were inadvertently jumbled/Special counsel Jack Smith’s team acknowledged mischaracterizing the issue at a recent hearing in the Trump classified documents case, but said the reordering was not significant" (Politico).

"Would pulling a fire alarm before a vote qualify for 20 years in federal prison?"

From yesterday's argument in Fischer v. United States, the case about charging January 6th defendants with violating a federal statute that arose out of the Enron scandal and was aimed at the destruction of documents.

What fits the statute under the government's interpretation?

JUSTICE GORSUCH: Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify, or at the state of the union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?

The fire alarm scenario must allude to the Jamaal Bowman incident, but of course, the Solicitor General proceeds smoothly and professionally, and calls it a "hypothetical":

GENERAL PRELOGAR: There are multiple elements of the statute that I think might not be satisfied by those hypotheticals, and it relates to the point I was going to make to the Chief Justice about the breadth of this statute. The -- the kind of built-in limitations or the things that I think would potentially suggest that many of those things wouldn't be something the government could charge or prove

"The Supreme Court seemed wary... of letting prosecutors use a federal obstruction law to charge hundreds of rioters involved in the Capitol attack on Jan. 6, 2021...."

"Mr. Trump’s case did not come up at the argument, which was largely focused on trying to make sense of a statute that all concerned agreed was not a model of clarity. But the justices’ questions also considered the gravity of the assault and whether prosecutors have been stretching the law to reach members of the mob responsible for the attack. Justice Clarence Thomas, who returned to the bench after an unexplained absence on Monday, asked whether the government was engaging in a kind of selective prosecution. 'There have been many violent protests that have interfered with proceedings,' he said. 'Has the government applied this provision to other protests?'..."

Adam Liptak reports in the NYT.

"The strain that runs really deep in the court in the last 10 years is a concern about prosecutors over-prosecuting."

"The court is very focused on ensuring that criminal statutes are not construed too broadly."

Said Roman Martinez a former law clerk to Chief Justice Roberts, quoted in "Supreme Court to weigh if Jan. 6 rioters can be charged with obstruction/Defense lawyers say prosecutors improperly stretched the law by charging hundreds with obstruction of an official proceeding" (WaPo, free access link).