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Ellis Boyle Thinks Fictional Stochastic Terrorism Is More Dangerous Than Actual Stochastic Terrorism
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DOJ has submitted its responses to Jim Comey’s challenges to his prosecution.In general, there are key gaps in each of the arguments where someone close to Trump should be. For example, in response to Comey’s motion to suppress two warrants that relied, in part, on the claims a family member of Comey’s wife made, it makes no mention that the person’s opinion on the meaning of 8647 changed after listening to Rudy Giuliani.
Defendant scrutinizes the recounting of Person 1’s statements, arguing it supports a Franks hearing based on whether Person 1 immediately perceived “86” as having a violent meaning, versus whether Person 1 eventually concluded the term “86” as a “call to violence.” [DE 40, Pg. 22].
The same is true for DOJ’s response to Comey’s vindictive and selective prosecution claim. It spends the bulk of the response disclaiming vindictiveness, relying heavily on an affidavit from Ellis Boyle (which itself has holes, starting with the AUSA who presented the indictment) and 12 citations to Judge Emily Marks’ ruling denying a vindictive and selective prosecution claim from SPLC.
It spends just a few pages responding to Comey’s argument that no one else has gotten prosecuted for an 86-based threat.
In it, DOJ points to an insane argument it made at more length in other responses, that Comey’s publication of a novel focused on a character — possibly modeled on Trump — who used threats to invoke stochastic terrorism to elicit violence against his enemies makes his seashell post criminal.
Begin with Comey’s claim that others have not been indicted for using “86” in connection with President Trump or former President Biden. DE 36 at 45–46. In his view, items listed for sale on Amazon containing the phrase “8645,” “8646,” and “8647,” are synonymous with Comey’s post. DE 36 at 45–46. Not so. The context and the setting of language matters, especially for a true threats analysis (as explained in opposition to Comey’s true-threats motion). Thus, not every statement containing the phrase “8647” is equal, and surrounding context—such as former FBI Director and mob prosecutor Comey’s near contemporaneous publication of a novel in which the antagonist gets his political rivals killed by communicating coded threats online—guides the analysis. Those differences in context go directly to “the strength of the evidence” as to whether those statements are true threats, and strength of evidence is a legitimate prosecutorial factor. Olvis, 97 F.3d at 744.
From there, DOJ dispenses with the comparators Comey presented by claiming that two of them (the first from Joe DiGenova, the second Steve Bannon) used language that separated themselves from the statements.
Given that and other context, none of Comey’s comparators are similarly situated. Indeed, many of the comparators’ posts do not and did not concern the sitting President after a string of assassination attempts. Additionally, many of Comey’s alleged comparators’ posts by their plain language are dramatized advocacy statements or past tense hypotheticals, see DE 36 at 46 (“should be drawn and quartered” and “I would actually like to go back to the olde time.” (emphasis added)), differing from Comey’s statement that on its face was not accompanied by conditional or past tense language. Instead, it communicated a present tense intention to kill President Trump.
Comey’s statement, reminder, was, “Cool shell formation on my beach walk,” though DOJ makes a ridiculous argument that Comey may have done the shell formation itself, in part, because it was four miles away from his beach cottage.
But that passage purporting to address “many” of Comey’s four comparators ignores Comey’s fourth — Paul Gosar’s pictures targeting Democrats with violence — and, most importantly, his first: Jack Posobiec.
In addition, several public figures have recently made statements about government officials that were comparable to, or far more violent than, Mr. Comey’s statement here. None was charged. First, on January 29, 2022, conservative media personality Jack Posobiec tweeted “86 46,” a reference to then-President Biden. Jack Posobiec (@JackPosobiec), X (Jan. 29, 2022; 23:23 ET), https://perma.cc/6NUQ-X7LR. Mr. Posobiec, a former Trump campaign official and U.S. Navy Reserve intelligence officer, did not retract his post. He faced no criminal charges.
The passages of Comey’s novel DOJ rely on make a case for charging someone who uses stochastic terrorism against his enemies because it worked before, five times in that case.
I think we can prove—and no sheikh case pun intended here—that Buchanan is willfully blind to the individual attacks. He knows an attack will follow his words but he closes his eyes so he can say he wasn’t part of it. Under the law, that willful blindness makes him as guilty as if he did the attack himself.”
He turned back to the board and began drawing lines out from Buchanan’s name, like the spokes of a wheel. “We can show five times he singled out someone, saying, in his word, ‘They have to go’ or ‘They must be stopped.’ Over and over again, he said that about a particular person—and within the overall context of ‘Words aren’t enough, people need to actually do something and take action.’ And his listeners did exactly that—five times that we know of.
Comey had to know his 8647 post would result in terrorism because he knows how stochastic terrorism works, the argument goes.
As I may write up, EDNC US Attorney Ellis Boyle makes a superb argument Donald Trump should be prosecuted for statements he made, as a private citizen, in 2023.
But this argument makes DOJ’s silence about the Posobiec comparator all the more damning. Posobiec knew, when he posted his 8646 post targeting Joe Biden in 2022, that his own statements had resulted in stochastic terrorism in the past, when Edgar Maddison Welch responded to Posobiec’s PizzaGate conspiracies by arming himself, driving to DC, and shooting up a pizza joint filled with children.
Jim Comey has never (as far as we know) succeeded in eliciting stochastic terrorism against him — though Trump’s minions have succeeded in eliciting true threats against Comey on at least two occasions, comparators about which DOJ is notably silent.
But Jack Posobiec has.
Ellis Boyle is arguing, in all seriousness, that fictional stochastic terrorism is more dangerous than Jack Posobiec’s past success at targeting a Democratic-owned pizza joint with his inflammatory false claims.
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