Anyway, the Comey trial isn\u2019t until October, but the DOJ just took a significant hit it didn\u2019t see coming.<\/p>\n
A separate case, Accountability NOW USA v. National Park Service<\/em>, involved a progressive protest group that had been flying an \u201c86 47\u201d flag during an impeachment demonstration outside a D.C. courthouse. The Secret Service opened an investigation, and the DOJ submitted a declaration from Secret Service Deputy Director Matthew Quinn arguing the phrase was a \u201cpotential call for acts of violence directed at the President of the United States.\u201d They tried to get the group\u2019s protest permit pulled, birthing the instant litigation.<\/p>\n But Judge Moss was not impressed<\/a> with the government\u2019s legal theory.<\/p>\n \u201cAlthough the Court recognizes the importance and difficulty of the mission of the Secret Service, the First Amendment does not permit the government to censor political speech, which no reasonable observer would view, in context, as actually conveying a threat of violence, merely because the speaker uses a phrase that, in addition to other more common meanings, has been used to refer to an act of violence,\u201d Moss wrote, granting the group a temporary restraining order and barring the National Park Service from pulling their permit.<\/p>\n He went further. On what \u201c86\u201d actually means, the judge leaned on Merriam-Webster, which defines \u201c86\u201d \u2014 originating from 1930s soda-counter slang \u2014 as \u201cto throw out,\u201d \u201cto get rid of,\u201d or \u201cto refuse service to.\u201d While Merriam-Webster notes that some have defined the phrase as \u201cto kill,\u201d it does not include that definition \u201cdue to its relative recency and sparseness of use.\u201d I\u2019m sure Comey\u2019s attorneys are taking copious notes.<\/p>\n And because the context matters, the judge found that the flag, displayed outside a courthouse during an impeachment demonstration and lacking any violent imagery, further supports the assertion that it is not a threat. Kinda like how seashells, regardless of their configuration, are difficult to see as a threat.<\/p>\n \u201cIn short, the record contains compelling evidence supporting Plaintiff\u2019s contention that it displayed the flag merely to urge President Trump\u2019s removal from office but contains no evidence supporting Defendants\u2019 contention that the flag represented a true threat on the life or physical well-being of the President of the United States.\u201d<\/p>\n Of course, as compelling as it may be, none of it is binding on the criminal court in the Eastern District of North Carolina where Comey\u2019s case will be tried. But DOJ\u2019s entire theory in the Comey case rests on the assertion that a reasonable person would interpret \u201c86 47\u201d as a threat of violence against the president, and this is\u2026 very much the opposite.<\/p>\n Read the full decision below.<\/p>\n Kathryn Rubino is a Senior Editor at Above the Law, host of\u00a0The Jabot podcast<\/a>, and co-host of\u00a0Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email\u00a0her<\/a>\u00a0with any tips, questions, or comments and follow her on Twitter\u00a0@Kathryn1<\/a>\u00a0or Bluesky\u00a0@Kathryn1<\/a><\/em><\/strong><\/p>\n The post DOJ Just Got Mossed On \u201986 47\u2032 Legal Theory<\/a> appeared first on Above the Law<\/a>.<\/p>\n <\/em><\/strong><\/p>\n You know how when a wide receiver burns the D so badly that NFL Hall of Famer Randy Moss features the play on the ESPN segment \u201cYOU GOT MOSSED\u201d you know you\u2019re in for a good time? Yeah, well that\u2019s what happened to the Department of Justice yesterday in the District of Columbia. Except instead of a football field, it was a federal courtroom. And instead of a wide receiver, it was U.S. District Judge Randolph Moss systematically dismantling the DOJ\u2019s central legal theory in the Comey \u201c86 47\u201d prosecution (in a completely different case) before the Comey trial even gets started.<\/p>\n You got Mossed, Todd Blanche. You got Mossed.<\/p>\n Here\u2019s the background. We\u2019ve been covering the Comey seashell saga since it began<\/a>, which involves the former FBI Director posting a photo of shells on a beach arranged to read \u201c86 47,\u201d captioned \u201cCool shell formation on my beach walk,\u201d and the Trump DOJ deciding that this constituted a federal crime. The second indictment, <\/a>announced with great fanfare by acting AG Todd Blanche at a fully staged press conference, charged Comey with threatening the president, while Blanche later attempted to distance himself from the whole thing,<\/a> claiming he didn\u2019t even know the names of the prosecutors involved, a claim somewhat complicated by the fact that he\u2019d personally introduced them by name at said press conference.<\/p>\n Anyway, the Comey trial isn\u2019t until October, but the DOJ just took a significant hit it didn\u2019t see coming.<\/p>\n A separate case, Accountability NOW USA v. National Park Service<\/em>, involved a progressive protest group that had been flying an \u201c86 47\u201d flag during an impeachment demonstration outside a D.C. courthouse. The Secret Service opened an investigation, and the DOJ submitted a declaration from Secret Service Deputy Director Matthew Quinn arguing the phrase was a \u201cpotential call for acts of violence directed at the President of the United States.\u201d They tried to get the group\u2019s protest permit pulled, birthing the instant litigation.<\/p>\n But Judge Moss was not impressed<\/a> with the government\u2019s legal theory.<\/p>\n \u201cAlthough the Court recognizes the importance and difficulty of the mission of the Secret Service, the First Amendment does not permit the government to censor political speech, which no reasonable observer would view, in context, as actually conveying a threat of violence, merely because the speaker uses a phrase that, in addition to other more common meanings, has been used to refer to an act of violence,\u201d Moss wrote, granting the group a temporary restraining order and barring the National Park Service from pulling their permit.<\/p>\n He went further. On what \u201c86\u201d actually means, the judge leaned on Merriam-Webster, which defines \u201c86\u201d \u2014 originating from 1930s soda-counter slang \u2014 as \u201cto throw out,\u201d \u201cto get rid of,\u201d or \u201cto refuse service to.\u201d While Merriam-Webster notes that some have defined the phrase as \u201cto kill,\u201d it does not include that definition \u201cdue to its relative recency and sparseness of use.\u201d I\u2019m sure Comey\u2019s attorneys are taking copious notes.<\/p>\n And because the context matters, the judge found that the flag, displayed outside a courthouse during an impeachment demonstration and lacking any violent imagery, further supports the assertion that it is not a threat. Kinda like how seashells, regardless of their configuration, are difficult to see as a threat.<\/p>\n \u201cIn short, the record contains compelling evidence supporting Plaintiff\u2019s contention that it displayed the flag merely to urge President Trump\u2019s removal from office but contains no evidence supporting Defendants\u2019 contention that the flag represented a true threat on the life or physical well-being of the President of the United States.\u201d<\/p>\n Of course, as compelling as it may be, none of it is binding on the criminal court in the Eastern District of North Carolina where Comey\u2019s case will be tried. But DOJ\u2019s entire theory in the Comey case rests on the assertion that a reasonable person would interpret \u201c86 47\u201d as a threat of violence against the president, and this is\u2026 very much the opposite.<\/p>\n Read the full decision below.<\/p>\n show_public_doc<\/a>Download<\/a><\/p>\n You know how when a wide receiver burns the D so badly that NFL Hall of Famer Randy Moss features the play on the ESPN segment \u201cYOU GOT MOSSED\u201d you know you\u2019re in for a good time? Yeah, well that\u2019s what happened to the Department of Justice yesterday in the District of Columbia. Except instead […]<\/p>\n","protected":false},"author":3,"featured_media":153609,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-153608","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/06\/IMG_5243-1-scaled-e1623338814705-620x568-QRtult.jpg?fit=620%2C568&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/153608","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=153608"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/153608\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/153609"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=153608"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=153608"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=153608"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\nKathryn Rubino is a Senior Editor at Above the Law, host of\u00a0The Jabot podcast<\/a>, and co-host of\u00a0Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email\u00a0her<\/a>\u00a0with any tips, questions, or comments and follow her on Twitter\u00a0@Kathryn1<\/a>\u00a0or Bluesky\u00a0@Kathryn1<\/a><\/em><\/strong><\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"