By Nick Catoggio
Wednesday, April 29, 2026
There is humor in every tragedy. Usually you have to
search for it, but sometimes it plops in your lap.
Tuesday was a plopper. At a press conference in
Washington, acting Attorney General Todd Blanche and FBI Director Kash Patel
fielded questions about the latest federal criminal charges filed against one
of Patel’s predecessors, James Comey.
Those charges stem from actions Comey took 11 months ago.
“Why now?” reporters asked.
“This investigation just didn’t come ‘now,’” Blanche corrected
them. “It’s the result of a lot of work by law enforcement over the past year.”
Patel confirmed that: “This has been a case that’s been investigated over the
past nine, 10, 11 months,” he said.
“These cases take time. Our investigators work methodically.”
Eleven months of methodical gumshoe work—over a photo of
seashells on a beach.
Last May, Comey posted an image on Instagram of shells arranged to spell “86 47.” The number “86” is old slang for “throw out” or “get rid of,” traditionally
used when denying service to a customer. The number “47” obviously refers to
the 47th president, Donald Trump. Right-wingers occasionally called
for “86-ing” Joe Biden during his presidency and no one took it as a veiled
assassination threat. But when a despised political enemy applied the term to
their hero, the opportunity to misconstrue his intentions in bad faith was too
delicious to pass up.
“I didn’t realize some folks associate those numbers with
violence,” a contrite Comey wrote
at the time after the partisan fake-outrage machine revved up. “It never
occurred to me but I oppose violence of any kind so I took the post down.” To
demonstrate his good faith, he sat for an interview with the Secret Service afterward to put their
minds at ease.
Yesterday he was indicted in North Carolina on two counts of “knowingly and
willfully” threatening to kill the president.
No hyperbole: Between the blatant legal absurdity of the
charges and the blatant malevolence of the people who pursued them, this is a
strong contender for the most corrupt prosecution in the history of the Justice
Department. Certainly it’s one of the most corrupt speech cases the DOJ has
brought since the Supreme Court began defining the parameters of the First
Amendment roughly a century ago.
Retribution.
Don’t take my word for it. Lawyers ranging from the Trump-friendly to the Trump-ambivalent to the Trump-hating agree that it stinks on ice. “I’ve been
talking to current and former prosecutors, federal prosecutors who are calling
this the flimsiest federal indictment that they have ever seen,” ABC News’ Jonathan Karl reported this morning. “Even Trump’s allies
are privately calling it ‘embarrassing,’ or as one very prominent former Trump
DOJ official told me last night, ‘depressing.’”
Another former Justice Department official bluntly told
CNN’s Kaitlan Collins, “This might be the worst case DOJ has
filed in my lifetime.”
There are thoughtful legal analyses
out there that explain why, with much more to come from Sarah Isgur and David
French on the next Advisory Opinions. But you don’t need a meticulous
constitutional exegesis to understand why the indictment will be dismissed.
This should suffice: The First Amendment grants Americans a very, very wide
berth in using inflammatory political rhetoric.
So wide that someone who said, “If they ever make me
carry a rifle, the first man I want to get in my sights is LBJ” during the
Vietnam era couldn’t
be prosecuted for threatening the president. So wide that a cretin urging a
restive mob of angry fanatics to march down to the Capitol as Congress prepared
to certify his opponent’s presidential victory wasn’t prosecuted for incitement.
A photo of seashells spelling out an ambiguous phrase
that was deleted and replaced with an apology isn’t within 100 miles of a “true
threat” exception to the First Amendment, even if a grand jury thinks so. Comey
will never face trial in this case; a federal judge will flush the charges down
the toilet long before that, and every lawyer in America knows it. Especially
Todd Blanche.
Legally, there’s really nothing more to say about it.
It’s the politics of the case that are worth talking about.
The correct answer to the question “Why now?” isn’t that
the FBI needed 11 months to investigate a photo. Unless Jim Comey was part of a
terror cell and “86 47” was the secret code to activate an assassination plot,
this inquiry could have and should have been wrapped up in hours.
The correct answer is that Blanche and Patel are
auditioning to keep their respective jobs and understand that boorish acts of
retribution against enemies like Comey are the path to the boss’s heart.
Your humble correspondent wrote about that less
than two weeks ago. Now that the presidential axe has fallen on Kristi
Noem, Pam Bondi, and Lori Chavez-DeRemer, everyone else in the Cabinet who
hopes to avoid being chopped is highly motivated to prove their worth to Trump.
As it happens, Patel is on thin ice after embarrassing the White House in various ways, and Blanche
knows that Trump is considering other people to replace Bondi as attorney
general.
So each is taking as many scalps of Trump nemeses as he
can, as quickly as he can. Patel has promised that arrests are coming soon in ye olde 2020 rigged-election
conspiracy, while Blanche is targeting a smattering of Trump foes for questionable
charges. You can imagine the lightbulb going off over his head after Saturday
night’s foiled
assassination attempt. “Is there anyone I can charge quickly to show the
boss that I have zero tolerance for threats against him? Wait, I know.”
Frankly, if I were Jimmy Kimmel, I’d be looking around
for a criminal defense lawyer right now. His joke about Melania Trump becoming a widow has already inspired an FCC censorship jihad against ABC; it can’t be long
before Blanche tries to muscle in on that action and charges him with
solicitation of murder too.
The thesis of my earlier newsletter was that the
administration would start to behave more autocratically as its support
declined and the president began purging deputies in frustration. Now here we
are, less than two weeks later, with James Comey facing 10 years in prison for
a photo of seashells. QED.
Officers of the court.
There’s another dimension to the Comey indictment beyond
mere scalp-taking, though. By filing it, Todd Blanche and his department have
functionally declared that they no longer intend to operate as officers of the
court, ethically bound to pursue a just outcome rather than a “win.”
“The primary duty of the prosecutor is to seek justice
within the bounds of the law, not merely to convict,” the American Bar Association has explained. “The prosecutor
serves the public interest … both by pursuing appropriate criminal charges of
appropriate severity, and by exercising discretion to not pursue criminal
charges in appropriate circumstances. The prosecutor should seek to protect the
innocent and convict the guilty … and respect the constitutional and legal
rights of all persons, including suspects and defendants.”
To put that another way, prosecutors have an ethical duty
to assist the judiciary in preventing injustices. Filing bogus charges in the
expectation that a judge will eventually toss them out doesn’t satisfy that
duty, as doing so will gum up the courts with frivolous cases and force the
innocent to suffer the expense, anxiety, and reputation damage that comes with
having to mount a defense. Being an “officer of the court” means that a
prosecutor must do everything in his or her power to secure a just outcome even
before a case reaches the courthouse door, starting with dropping the charges
if conviction is unlikely.
All of that is out the window as of Tuesday.
Transparently, Blanche and his cronies sought an indictment they know won’t
survive judicial scrutiny and did so for no nobler reason than that the wannabe king
to whom they answer wanted it that way. That ethical dereliction of duty is so
absolute that it amounts to formally renouncing their allegiance to the
judiciary as officers of the court and pledging their allegiance instead to a
vindictive miscreant known to boast about being “the most powerful person to ever live.”
“The point of the indictment is to demonstrate that the
United States Department of Justice is wholly an instrument of Donald Trump’s
senescent pique, no more independent of him than a boil on his ass,” attorney Ken White wrote. Just so. The American public is now on
notice that no case is too absurd to be pursued if doing so might cause a
presidential enemy grief, whatever ethical guidelines might have to say about
it. The prosecution of James Comey will fail legally but will succeed
politically at its rotten goal of making Trump critics think twice before
saying something unkind about him.
It’s the end of the Justice Department as a respectable
institution in American society (insofar as that end hadn’t
come already) and its rebirth as something more like a secret police force,
with everything that entails.
The most one can say for what Blanche has done is that
it’s in line with how every other Republican-controlled institution has behaved
toward Trump over the last 10 years. The cowards who populate the president’s
party decided long ago that restraining him is always someone else’s
responsibility, never their own. Sometimes that means Democrats, sometimes
voters, sometimes the courts: You may recall that one of the excuses offered by
Senate Republicans for not convicting him at his second impeachment trial was
that the criminal justice system could and would hold him accountable for
January 6.
Then, when the criminal justice system tried to hold him
accountable for January 6, they screamed like infants about “lawfare.”
Blanche is now engaged in the same buck-passing, forcing
a federal judge to face Trump’s wrath by dismissing the Comey indictment rather
than face it himself by declining to seek the indictment to begin with. Being
an officer of the court means prosecutors are supposed to act in the interest
of justice even when doing so disappoints their constituents: Indicting a
celebrity with a huge fan base, say, or refusing to charge a suspect in a
sensational murder case due to lack of evidence will make you unpopular with
the public but them’s the breaks when you have an ethical duty to seek a just
outcome.
The acting attorney general decided he’d rather light
that ethical duty on fire than make the president mad. That’s right-wing
politics in microcosm since January 2017, a remorseless feast of bootlicking
postliberal maggots eating through the carcass of the constitutional order.
Remedies.
I’m open to punishing those responsible for this case
with any lawful or professional sanctions available. “The remedy is to make
certain that nobody involved in this travesty is ever respected or trusted or
accepted again,” as White put it.
To begin with, lawyers—especially talented ones—should
shun employment by the Justice Department. We can debate whether attorneys who
work there now have an
ethical obligation to quit, but I can’t imagine the case for signing up.
You won’t change the institutional culture there for the better with Trump and
Blanche running things. And you won’t starve by saying no: Anyone with the
legal chops to land a job at the DOJ has the chops to land a job at a state or
local prosecutor’s office or a higher-paying position at a private firm.
Force this mafia law firm to staff up with clowns who
can’t get hired elsewhere. That’s one way to deny it and its leaders
respectability.
Needless to say, the Senate should also reject Blanche if
Trump moves forward with nominating him to become attorney general. It’s the
least they could do—literally—to show higher-ups at the DOJ that there will be
consequences if they follow the president too slavishly. Blanche went ahead
with the Comey prosecution because he believed that the White House is the only
constituency in government to which he answers, which is technically false but
practically true. It’s time for Congress to do something about it.
I’m also open to House Democrats impeaching Blanche,
Patel, and other Senate-confirmed officers who were involved in this debacle
next year. The point wouldn’t be to remove them, as we all know the Senate
wouldn’t do that. The point, again, would be to drive home to Trump cronies
that the opposition party is watching their behavior closely and is prepared to
hold them accountable in draconian ways. The president won’t be there forever
to shield them from having to answer to the federal government for their corruption.
Plus, it’d be fun to force lawyers like Ted Cruz who know
the Comey indictment is a preposterous constitutional disgrace perpetrated for
the foulest authoritarian reasons to feebly mumble about it not quite rising
to the level of a high crime or misdemeanor.
Failing that, there are other remedies Democrats could
pursue. They could seek some sort of targeted defunding of the DOJ—not on the
meat-and-potatoes crime-fighting or counterterrorism side, obviously, but
certainly there are perks that the department’s leadership enjoys that can be
stripped away. And state bars could and should take a hard look at whether the
lawyers involved committed ethical breaches in pursuing the case. For instance,
Blanche’s home state of New
York warns prosecutors not to seek criminal charges “when the prosecutor or
other government lawyer knows or it is obvious that the charge is not supported
by probable cause.”
“But wait,” you say. “The grand jury issued an indictment
against Comey. There is probable cause!”
That will be Blanche’s defense to all of this, yes, and
would assuredly be the excuse Senate Republicans use not to impeach him. But to
let the Justice Department hide behind the ignorance of a panel of laymen after
it sought facially unconstitutional charges would be to endorse another example
of cowardly buck-passing by Republicans who know better but were too gutless to
tell the president no.
Again, this is what it means to be an officer of the
court. Todd Blanche and his toadies know there’s no probable cause to
believe that Comey issued a “true threat” within the meaning of the First
Amendment even if the grand jury did not. (I’d be surprised if the jurors were
instructed on the constitutional nuances of what is and isn’t a “true threat”
before they issued their bill.) They know that a federal judge will
dismiss the indictment, and so they know there will be no conviction.
Their ethical duty was to not pursue the case, whether or not they believed
they could clear the initial “ham sandwich” threshold of obtaining an
indictment.
If they’re no longer officers of the court, the stewards
of their profession should treat them accordingly. They’re no longer practicing
law in a meaningful sense so why should they be permitted to say they’re
licensed to do so?
The likeliest punishment Todd Blanche will face, though,
is from Donald Trump himself. Maybe the president will be satisfied by
his team’s effort after this matter is inevitably resolved in Comey’s favor,
happy that his acting AG at least tried to put his nemesis in jail before some
“radical left” judge stepped in. But I wouldn’t bet on it. Trump has always
been a results-oriented guy; if James Comey ends up walking free with every
lawyer in the country blessing the outcome, that doesn’t seem like a result
he’d consider a win.
Blanche’s reward for pursuing the boss’s vendettas more
vigorously than even Pam Bondi did might be getting tossed out on his ear, the
latest in a series of underwhelming henchmen who disappointed the president by
failing to make his dreams of “retribution” come true. It’s just what he
deserves.
