The indictment returned on Tuesday charges, in the government’s words, that the defendant did “knowingly and willfully make a threat to take the life of, and to inflict bodily harm upon, the President of the United States”, and separately that he transmitted such a threat in interstate commerce.
A federal grand jury in the Eastern District of North Carolina returned it. The acting attorney general announced it. The former director of the Federal Bureau of Investigation is the defendant, and the conduct alleged is a photograph of seashells arranged on a beach to read 86 47, posted briefly to Instagram last year and then removed.
This is the second time this Justice Department has charged this person, and the relationship between the two prosecutions is where the useful part of this is.
The date
November of last year, when a federal judge dismissed the first set of charges.
Those charges were different in every particular: false statements and obstruction, arising from testimony to the Senate Judiciary Committee in 2020, brought in the Eastern District of Virginia. They did not concern a photograph or a threat.
Judge Cameron McGowan Currie dismissed them, and the ground had nothing to do with whether the defendant had done what was alleged. She found that the acting United States attorney who had obtained the indictments was unlawfully appointed, and that an indictment secured by a person without lawful authority to secure it could not stand.
The dismissal was without prejudice.
What those three words do
They are the whole of what November turned out to mean, and they are routinely reported as though they were a technicality attached to a defeat.
A dismissal with prejudice ends a matter. The government may not bring it again, and the defendant is entitled to treat it as over.
A dismissal without prejudice ends a filing. It says that this attempt failed for the stated reason, and that nothing about the ruling prevents a properly constituted prosecution later. The defect identified was in who brought the case, not in whether a case existed, and a defect of that kind is curable by the simple expedient of having somebody else bring it.
So November was not a finding of innocence and was never described as one by the court. It was a finding that a step in the machinery had been taken by a person not entitled to take it.
What was and was not cured
The appointment problem appears to have been addressed in the most direct way available, which is that the department now has a differently constituted leadership. The attorney general was dismissed at the beginning of this month and her deputy is serving as acting attorney general, and it is in that capacity that Tuesday’s indictment was announced.
That is worth stating carefully. An acting officer’s authority to supervise a prosecution is not the same question as an acting United States attorney’s authority to obtain an indictment in a particular district, and the November ruling addressed the latter. Whether the current arrangement is proof against a similar challenge is a question that will be litigated rather than assumed.
And the charges are not the old charges. This is not the 2020 testimony matter revived. It is a different allegation, on different facts, in a different district, before a different grand jury.
Why the district matters
The Eastern District of North Carolina is not where the previous case was brought, and venue in federal criminal cases is not a matter of preference.
The Constitution requires trial in the state and district where the crime was committed. For an offense involving a communication, that can mean the place it was sent from, and courts have had to work out how that applies to something posted online and readable everywhere. The choice of district therefore carries an implicit claim about where the conduct occurred.
A defendant who disputes that claim can move to dismiss for improper venue or to transfer, and in a case whose central act is a photograph posted to a social network, venue is unlikely to go unexamined.
What the case will actually turn on
Not, in all likelihood, on what the numbers on the beach meant to the person who arranged them.
The federal threat statutes require a true threat, and the constitutional law around that term is settled in outline and contested at the edges. A statement is not a true threat merely because somebody felt threatened by it, and political hyperbole, however unpleasant, has long been held to be protected. The Supreme Court has also addressed what state of mind the government must prove, and the answer is not that intent is irrelevant.
So the questions in front of this court are: whether the post is capable of being a true threat at all, what the government must prove the defendant understood about how it would be received, and whether the evidence supports that. Those are legal questions before they are factual ones, and they are the sort that get decided on motions rather than by a jury.
The thing that makes a second prosecution different
There is a principle in the background here that is worth naming, because it is the one people reach for and it does not apply.
Double jeopardy protects a person from being tried twice for the same offense. It attaches when a jury is sworn, or in a bench trial when the first witness is sworn, and it bars a second prosecution after an acquittal or a conviction.
None of that is engaged by either the November dismissal or Tuesday’s indictment. No jury was ever sworn in the first case, so jeopardy never attached, and in any event these are not the same offense: different conduct, different statute, different year. A defendant can be charged with a second thing at any time, and the existence of a failed first prosecution neither helps nor hinders that.
What the first case does supply is a record. A judge has already found that this department’s approach to appointing the prosecutor was unlawful in one district, and that finding exists whether or not it binds anybody here.
What to watch
Three things, in the order they will arrive.
A motion to dismiss on First Amendment grounds, which is close to certain and which will produce the first substantive judicial view of whether this charge can stand at all. That ruling will tell you more than the indictment did.
A challenge to venue, and how the government justifies the district it chose.
And a renewed challenge to the authority of whoever signs the filings, because that is the issue that ended the last attempt, and a defendant who won on it once has every reason to test whether it has genuinely been fixed or merely moved.
None of those is about seashells. All of them are about whether the machinery has been operated properly, which is what the previous case foundered on, and which is the only part of this that a court has so far actually decided.
