Displaying an “86 47” flag cannot be interfered with by the National Park Service, a federal judge ruled Monday — the same anti-Trump message that led to former FBI Director James B. Comey’s indictment for threatening the president.
The left-wing group Accountability Now USA, which has been protesting President Trump 24/7 near the National Mall, cannot have their permit to protest revoked, U.S. District Judge Randolph Moss said in a two-week restraining order Monday.
Judge Moss, an Obama appointee, rejected the notion that the phrase is a cryptic message of violence against the president, determining that “no reasonable observer could have viewed [Accountability Now USA’s] display of the flag as a threat to the president’s life or physical safety.”
He said that it is “difficult to fathom how the NPS (or the Secret Service) could have concluded that a reasonable observer would view the flag as a true threat.”
“The term ‘86’ is used far more often to mean ‘throw out’ than ‘kill,’ and it appeared at a demonstration that was focused, of all things, on the constitutional impeachment and ‘removal’ of the president,” he said in his ruling.
The Secret Service began an investigation into a volunteer as a “potential threat” after the group began displaying the “86 47” flag.
One of the protesters told an officer, “I never heard of it standing for anything other than Trump shouldn’t be in office.”
Secret Service Deputy Director Matthew Quinn said in a court filing, “Based on my training and experience, I believe that this term, as it is understood today, can incite violence by others.”
“Such conduct will be investigated appropriately by the Secret Service to determine its potential to result in an act of violence and take appropriate protective action to mitigate any risk presented,” he said.
The Secret Service is investigating or has investigated over 1,300 instances of people using “86 47” or “86 46,” referring to former President Joseph R. Biden.
Federal officers ordered that the flag be taken down last week after an individual opened fire on Secret Service outside of the White House.
Judge Moss’ ruling was a blow to the Justice Department as it seeks to indict Mr. Comey.
The same numeric symbol led to Mr. Comey’s newest criminal case, in which he posted seashells arranged in the numbers “86 47,” which the Justice Department interpreted as a death threat against Mr. Trump.
Mr. Comey said that he believed it was communicating a “political message” but “didn’t realize some folks associate those numbers with violence.” He deleted the post.
Critics called the case against the former FBI director, an adversary of the president, a case of political retribution. It was the second indictment of Mr. Comey after a judge threw out an earlier unrelated indictment last year.
Acting Attorney General Todd Blanche, who announced the charges last month, said that Mr. Comey’s post crossed the threshold for First Amendment-protected speech.
