Trump DOJ Gets Devastating News in Comey Case

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1:54Michael Popok:After last night's ruling by federal judge Randolph Moss in favor of a public interest group, a very small one at that, protesting in Washington in front of a courthouse, perhaps the Department of Justice and Todd Blanche want to 86 the indictment of James Comey, former FBI director. Because the very heart of that indictment about a posting of a set of seashells on a beach in the Outer Banks of North Carolina, which read 8647, and the attempt to indict James Comey because that is somehow a call for incitement of violence against the president or a call for his assassination. That has been ripped to shreds by federal judge Randolph Moss in a case having nothing to do with James Comey, but that came out late last night in a matter involving Accountability Now USA.

2:51Michael Popok:You probably never have heard of them, but now you won't forget them. That group has been around the clock with volunteers out in front of a courthouse in D.C. on Constitution Avenue 24-7, 365, you know, every day have been lobbying the public in the free exchange of ideas in the public square to impeach and remove Donald Trump. And somebody went on Amazon and got a giant flag. We have a picture of it here that said 86-47. Now, as I've said before, I worked at a diner when I was studying for the bar. I know what 86 means. It means in a restaurant parlance that you're out of something. It's the back of the house telling the front of the house that they're out of potato salad or tuna fish or french fries or whatever.

3:41Michael Popok:86, the chicken salad. That means you're out of it. It doesn't mean take it in the back and assassinate it. That's what the phrase means. And yet that's the heart of the indictment against the former director of the FBI. It came up as subject matter First Amendment issue in this case by accountability now because they were denied a permit by the superintendent of the National Mall and Memorial Parks and others because they had that flag. In fact, while this suit was pending, according to Judge Moss's memorandum opinion, which we have here, which we're going to be posting in Legal AF Substack, according to that, just after the case was filed, four park rangers, park employees in uniform came over and started threatening employees that they were going to be arrested for threatening the president.

4:37All right.

4:38Michael Popok:So you have two things at issue. The free exchange of ideas, First Amendment to be able to call for the impeachment and whether that crossed the line, given the context to call for incitement to do violence against the president or a threat against the president. And context matters. That's what Randolph Moss says. You know, a couple of school teachers hanging out every day, exhausted, doing their First Amendment business in front of a courthouse without any other signals of violence, no nooses, no symbols of violence, no nothing. that is not 8647 meaning assassinate the president, according to Judge Randolph.

5:23Michael Popok:This will now be used by the lawyers for James Comey, who will now argue, we already have one federal judge who said that's a proper expression of First Amendment rights. How can that be at the heart of a criminal case. Here's what Judge Randolph wrote. By the way, I'm Michael Popak. You're on the Midas Touch Network. I have a personal request, and I wouldn't ask for it if we didn't need it. Become a free subscriber of Legal AF YouTube channel. Come over there now and help us continue to grow that pro-democracy channel. Okay, here's from the memorandum opinion, 21 pages by the judge. First, he talks about how they have been volunteers, this is on page one, volunteers maintain the demonstration at the George Meade statue on Constitution Avenue by the courthouse 24 hours a day, seven days a week, at which they engage in face-to-face conversations with members of the public to call attention to the rise of fascism and demand the impeachment of President Trump.

6:27Okay.

6:28Michael Popok:I mean, look, they've gone as far as to put up signs on page two that says Trump raped little girls. Kids, if your parents are MAGA, they love child rapists. I mean, listen, that's a conversation. That's a First Amendment conversation, if you will. When it crosses the line is if there are not, if it's obscenity or if it somehow calls for violence against the president. And particularly was they were upset on the Trump side with the 8647 flag that is waving there. And that led to Secret Service officers approaching a volunteer, asking them about the sign, trying to get to the bottom of it. There's actually a conversation recorded between the Secret Service and the volunteer.

7:15Michael Popok:Secret Service, how are you? Volunteer, I'm good. I'm recording this because they told me to. Officer, that's fine. How's it going? Not a problem. Just so you're aware, this is all consensual. Volunteer, yeah. We received a phone call because of the flag. In fact, the 8647 and what it can stand for. Volunteer, I never heard of it standing for anything other than Trump shouldn't be in office. Officer, all right, so you have no ill will towards, I want Trump to live forever and rot in jail where he belongs. Okay, that's it. That's all I needed to know. Officer, we got a call, so we just wanted to come down here.

7:50Michael Popok:Volunteer, I'm sorry somebody wasted your time. According to the judge on page five, things took a turn for the more confrontational when two different officers approached the same volunteer 25 minutes later and started reading them the Miranda warnings. Nothing happened for another two weeks. But then after the suit was filed, we had a bunch of cars pull up in front of four cars of U.S. Park Police officers pulled up to plaintiff's demonstration site. This is page five and six of the memorandum opinion and started throwing around statutory codes, criminal code, got it wrong, by the way, and said, yeah, we're here about 18 U.S.C.

8:32Michael Popok:Code 8741 threats against the president. There is no 8741. They probably meant 871 about threats against the president. Now, the analysis here of the temporary restraining order, which the judge has entered to stop for at least two more weeks, anybody denying them a permit so they don't have to leave because they're flying that flag. The judge says this comes down to two fundamental principles essential to a free country. This is on page eight. First, content-based restrictions on political speech at a public forum, particularly restrictions that are premised on the impressions of government officials, are inherently suspect.

9:11Michael Popok:You get to have these opinions even if they piss somebody off in the public square. second true true threats to the life or safety of government officials are intolerable full and open debate is necessary for democracy to work but there's nothing democratic about threats of violence but it has to be a true threat of violence and the context therefore matters they all agree according to the hearing that the judge held that 8647 can given its context be innocent or it may be more menacing. It depends on content. Oh, I'm excited to tell you about the world's number one expanding garden hose and their brand new product, the Pocket Hose Ballistic.

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10:40Michael Popok:Just text legal to 64000. That's legal to 64000 for your due free gifts with purchase. Text legal to 64000 message and data rates may apply. The judge goes on on page 11 to say, where did it come from? It came from, according to Merriam-Webster's dictionary, 86 is slang meaning to throw out, to get rid of, or to refuse service to. The phrase comes from the 1930s, soda counters. That was like a luncheonette inside of a pharmacy, meaning that it was an item was sold out. May have been because it rhymes with Nix, N-I-X. It was first used as a noun to an item that had been sold out. But by the 1950s, it was also used to refuse to serve a customer, probably during the civil rights era.

11:30Michael Popok:Now, he says that it can't be an abstract analysis. On page 13, Judge Moss says the question whether 8647 constitutes a true threat cannot be resolved to the abstract without context. The flag itself in this case contains no symbols of violence. It's red, white and blue. It is simply adorned with white stars. It has no knives or skulls or nooses or other threatening symbols, you know, like the ones that were used on Jan 6 by the insurrectionists. Even more to the point, the flag was displayed outside the courthouse. as part of an ongoing demonstration seeking Trump's impeachment and removal from office.

12:09Right?

12:10Michael Popok:Impeach, convict, remove, impeach, throw out. That's the language that's being used at the courthouse. Judge also said it can't be seen as incitement to do violence given the context. Next. And finally, when he does the analysis of the four factors to determine whether a temporary restraining order should be put in place, likelihood of success on the merits, he says the public interest group is likely to succeed on the merits that they have a First Amendment right to expression and that they're not crossing over into obscenity or incitement to riot or due violence or a threat, a direct true threat against the president.

12:55Michael Popok:That they have irreparable harm in having their First Amendment rights violated. They have an inadequate remedy at law. They don't want money. They want to be able to demonstrate and that the balance of equities and public interest is in their favor because we don't want to squelch core political speech. So says Randy Moss. And in return for a$1 bond, he's giving the plaintiffs a restraining order for the next 14 days so they can display the 8647 flag at their site. This helps, of course, the indictment of former FBI director James Comey, who was walking the beach near his vacation home in the Outer Banks of North Carolina, beautiful location, by the way, came across some sort of seashell collection, not one that he did.

13:43Michael Popok:Nobody thinks the six foot seven FBI director was placing seashells on the beach and posted it and said, interesting seashell collection I ran across today. We'll put it up on the screen. Oh, incitement to do violence. Oh, true threat against the president. We must indict. No, First Amendment political expression. It wasn't even his. He was reposting. If context truly matters, as Judge Moss just said, think of the context, a casual posting on social media. It wasn't surrounded by nooses or weaponry or guns or a target or a bullseye or anything like that. It was just seashells on the beach. Even Trump didn't think it was a threat.

14:31Michael Popok:Here's a clip of Trump effectively admitting that he wasn't threatened by the posting. Play the clip. He's now been charged a second time, this time over a social media post with seashells. that said 8647, do you really think that he was endangering your life or threatening your life with that? Well, if anybody knows anything about crime, they know 86, you know what 80s, it's a mob term for kill him, you know? You ever see the movies, 86 him. But do you really think your life was in danger? Probably, I don't know. So, we got that going on. So sometimes cases that were, it's very interesting, cases that were not following that closely, but maybe should have, end up helping and strengthening the hand of criminal defendants who are also targets of Donald Trump in this administration.

15:16Michael Popok:And we've got to keep a close eye on this because you know now that Donald Trump has just named Bill Pulte, right, the Nepo baby amateur who's running Freddie May and Fannie Mac, the mortgage liquidity entities, to be the acting director of national intelligence. The guy's never served in the intelligence community in his life. But he's not there for that. He's there to go after Donald Trump's political enemies and make criminal referrals and run around and try to undermine people's confidence in the voting system and the vote for the midterms. That's his number one objective. So that's why cases like this and judges like Randy Moss are really, really important to our democracy and the protection of the rule of law.

16:03Michael Popok:You're here on Midas Touch. Follow my work here. Follow my work on Legal AF YouTube channel. Hit the free subscribe button. Help us to continue to grow our pro-democracy channel. Until my next report, it's Michael Popok. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do called, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well.

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