It is a coincidence that I have just finished reading FDR Drive when there are news stories appearing about the American Federal Department of Justice attempting to bolster their case against the author, James Comey, by using excerpts from the book.
In this post I make references to the book that I would consider spoilers. They do not reveal the ending but readers who want little information about a book before reading are hereby warned there is significant information in this post.
The Department of Justice has alleged, as set out by Publishers Weekly:
…. that Comey threatened to harm President Trump when he posted a photo of seashells arranged on a beach to spell “86-47.” Comey’s lawyers have asked that the case be dismissed.
Earlier this month Publishers Weekly set out the Department of Justice position:
In a filing earlier this week, the Department of Justice maintained that Comey, similarly to a right-wing podcaster in his legal thriller FDR Drive, sent coded messages to his followers suggesting they kill an enemy of his. The new filing, which seeks to prevent the DOJ’s case from being thrown out of court, also includes a starred PW review of the book, which concludes with the observation that FDR Drive “proves that Comey the crime novelist is here to stay.”
I looked up and read the Government’s submission to the Court and Comey’s response.
The excerpts quoted by the Government from FDR Drive appear in the facts of the submission. They need to be claimed to be evidence to be relied on in an argument.
Leaving aside the issue of freedom of speech I cannot recall where a prosecutor or defence counsel have sought to use statements in a work of fiction as evidence in a criminal proceeding.
While self-evident the Department of Justice appears to need reminding that the book is “fiction” not “non-fiction”.
There are defamation actions against the authors of fictional works that named real persons or created characters who were obviously real life people. I discuss the issue in a series of posts concerning Palace of Treason by Jason Matthews. In the book Matthews named Vladimir Putin and described him very negatively.
Once again, stating the obvious, defamation is civil not criminal.
In my review of the book I stated with regard to the evil podcaster, Sam Buchanan:
He calls on the patriots of White America to act to defend the nation from the others intent on taking over. He names people he identifies as tyrants. Two have been killed.
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As a precedent the prosecutors look back a thousand years to King Henry II asking his knights who will rid him of the meddlesome Archbishop of Canterbury, Thomas Becket.
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Buchanan states:
The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants, as Jefferson said.
The government’s filing quotes the reference to Henry II but not the portions of the book connected to the first and third references. I include them for context.
In the book prosecutors realize there is a problem with connecting the words to the actions of the killers. To remedy that weakness Comey creates a jailhouse informant. By accident Buchanan is housed with a serial criminal informant, Michael James Gerardi. Buchanan on tape, unprompted, freely says to Gerardi that he knew what would happen “because I wanted it to happen, I was committed to having it happen”. The prosecutors have the connection for a conspiracy.
The Department of Justice has no one saying Comey told anyone that FDR Drive is connected with his posting of the photo of the seashells to allegedly threaten President Trump. The Department of Justice does acknowledge that Comey denies arranging the seashells and that Comey stated:
I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.
I further note President Trump is not mentioned in FDR Drive.
It is ironic that the Department of Justice is using an example of writing in which a fictional highly conservative right wing podcaster is sending messages which incited violence.
If there is a message to be drawn from the book it is that any real life highly conservative right wing podcasters, talking about their opposition as tyrants and that “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants” are a danger to American society. I would not say they should be subject to criminal charges.
Publishers Weekly further said:
In the filing, prosecutors also said Comey had an “apparent financial incentive to stir up controversy,” suggesting the seashell photo was shared in an effort to juice sales for his “eerily on-the-nose novel.”
The “apparent financial incentive” was a poor incentive. The Guardian newspaper reports that, according to Circana BookScan, Comey’s novel has sold 6,471 copies as of August of 2026.
I consider the Department of Justice position such a far fetched theory that no author of crime fiction could advance it in a book.
Comey’s lawyers, in their reply to the Department of Justice submission, did not bother to respond to the submissions on FDR Drive.
The material is now before a Federal Court judge. I will be very interested to read the judgment.
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