Michigan GOP Seeks DOJ Probe of Whitmer's '86 45' Emblem as Comey Faces Charges

Key facts

• James Comey indicted by federal grand jury in North Carolina for posting '86 47' seashell photo, allegedly threatening President Trump.
• Whitmer displayed '86 45' emblem during October 2020 'Meet the Press' interview; statute of limitations is five years.
• Acting AG Todd Blanche said 'other incidents of threats against the president' will be investigated, but declined to compare cases.
• Michigan Republican Party's X account questioned whether DOJ would investigate Whitmer; post shared nearly 2,000 times.
• Former federal prosecutor Barb McQuade said charges against Whitmer would be 'even more baseless' than those against Comey.
• McQuade cited time bar and First Amendment protection for political speech as reasons charges would fail.
• DOJ declined further comment beyond Blanche's remarks; Whitmer's spokesman did not respond to request for comment.

A Five-Year-Old Emblem Resurfaces in a New Political Storm

The Justice Department's indictment of former FBI Director James Comey for a social media post has reopened a dormant controversy involving Michigan Governor Gretchen Whitmer. During a Tuesday news conference, Acting U.S. Attorney General Todd Blanche left the door open to investigating the Democratic governor over an emblem she displayed in a television interview more than five years ago. Blanche told reporters that 'other incidents of threats against the president of the United States, those will be investigated,' while cautioning that 'every case is different.' The Michigan Republican Party swiftly seized on the remark, posting on X that the department had left 'open the possibility of investigating Michigan Gov. Gretchen Whitmer.'

The '86 45' Incident and the Statute of Limitations

The emblem in question appeared during Whitmer's October 2020 appearance on NBC's 'Meet the Press,' when Trump was the 45th president. The phrase '86 45' uses restaurant industry slang where '86' can mean to remove or eject an item — or, as Trump's campaign argued at the time, 'can be shorthand for killing someone.' Whitmer's team countered that the reaction showed no one in the Trump campaign had worked in restaurants. Blanche acknowledged that the Comey charges carry a five-year statute of limitations, which would likely bar any prosecution of Whitmer for the 2020 incident. The Michigan GOP's call for an investigation has nonetheless gained traction online, with its post shared nearly 2,000 times.

Legal Experts Dismiss Prospects of a Whitmer Probe

Former federal prosecutor Barb McQuade, who served as U.S. attorney for Detroit from 2010 to 2017, said charges against Whitmer would be 'even more baseless than the charges against James Comey because they are time-barred under the statute of limitations.' McQuade added that even if the statute were not an issue, the expression is political speech protected by the First Amendment and does not constitute a 'true' threat of violence. 'Charges against Governor Whitmer would be an embarrassment to the Department of Justice,' McQuade told The Detroit News, echoing her assessment of the Comey case. The Justice Department declined to comment beyond Blanche's remarks, and a spokesman for Whitmer did not respond to a request for comment.

The Comey Indictment: A Parallel Case with Different Facts

The Comey indictment stems from a photo he posted last year of seashells arranged to read '86 47,' which prosecutors allege was intended as a threat against President Trump, the 47th president. A federal grand jury in North Carolina charged Comey with making a threat against the president and transmitting a threat across state lines. Blanche emphasized that comparisons between cases are not straightforward. 'The facts are different. Who makes the threat matters. What the threat says matters. The question of intent matters,' he said. 'It's not fair... to compare, if you did it here, why didn't you do it there?'

Political Speech or True Threat? The First Amendment Question

Legal scholars have long distinguished between protected political speech and 'true threats' that fall outside the First Amendment. McQuade argued that the '86' expressions in both cases are political commentary, not incitement to violence. The context of Whitmer's emblem — displayed during a television interview — further undercuts any claim of a direct threat, she said. The Michigan GOP's push for an investigation appears to be as much a political maneuver as a legal one, aimed at putting Whitmer on the defensive. With the statute of limitations expired and the speech likely protected, the call may have more symbolic than practical weight.

What Comes Next: A Test of Prosecutorial Discretion

Blanche's open-ended statement leaves room for the department to review the Whitmer matter, but legal and temporal barriers make charges improbable. The Comey case itself faces skepticism from legal observers who view it as a politically charged prosecution. McQuade predicted that any charges against Whitmer would 'fail for the same reasons the charges against Comey will fail.' The episode underscores the Justice Department's delicate position as it navigates politically sensitive cases under a new administration. For now, the Whitmer controversy remains a flashpoint in Michigan politics, with the governor's office silent and the department noncommittal.

The bottom line

• The Justice Department indicted James Comey for a social media post reading '86 47,' alleging a threat against President Trump.
• Michigan Republicans are urging a similar investigation into Governor Gretchen Whitmer for displaying '86 45' in a 2020 TV interview.
• Acting Attorney General Todd Blanche said other threat incidents will be investigated but declined to compare the two cases.
• Legal experts say any charges against Whitmer would be time-barred by the five-year statute of limitations and protected by the First Amendment.
• Former federal prosecutor Barb McQuade called potential charges against Whitmer 'even more baseless' than those against Comey.
• The Michigan GOP's call has gained traction online, but the legal hurdles make prosecution highly unlikely.