WASHINGTON — Michigan Republicans are suggesting that the U.S. Department of Justice should investigate Gov. Gretchen Whitmer's "86 45" emblem visible in a television interview she filmed, but the five-year statute of limitations under federal law would probably bar any charges related to the 2020 incident.

The Justice Department on Tuesday announced an indictment against former FBI Director James Comey over a photo he posted to social media last year of seashells on a beach arranged to read “86 47,” which prosecutors allege was intended to be a threat to the life of President Donald Trump, the 47th president.

When asked about possibly investigating Whitmer, acting U.S. Attorney General Todd Blanche left the door open to a probe of the Democratic Michigan governor, telling reporters during a Tuesday news conference that “other incidents of threats against the president of the United States, those will be investigated.”

“Every case is different. The facts are different. Who makes the threat matters. What the threat says matters. The question of intent matters,” Blanche said Tuesday. "It's not fair ... to compare, if you did it here, why didn't you do it there?"

A federal grand jury in North Carolina charged Comey with making a threat against the president and transmitting a threat across state lines. But Blanche himself said during the Tuesday news conference that the Comey charges carry a five-year statute of limitations.

The "86 45" incident involving Whitmer's TV appearance on NBC's "Meet the Press" took place more than five years ago in October 2020 when Trump was the 45th president.

At that time in 2020, Trump's campaign had argued that "86-ing" "can be shorthand for killing someone," while Whitmer's team countered that the campaign's reaction was evidence that no one in the Trump campaign had worked in the restaurant industry, where "86" is a way to denote a menu item being out or a customer being ejected from a restaurant.

In a Tuesday social media post, the Michigan Republican Party's official X account questioned whether the Department of Justice would investigate Whitmer. The Michigan GOP account also posted that the department had left "open the possibility of investigating Michigan Gov. Gretchen Whitmer" ― a post that has been shared nearly 2,000 times.

The Department of Justice declined to comment Wednesday beyond Blanche's remarks. A spokesman for Whitmer didn't immediately respond to a request for comment about Blanche's comments or the statute of limitations.

What legal experts say about charging Whitmer for '86 45' emblem

Former federal prosecutor Barb McQuade said filing charges against Whitmer, like the charges against Comey, would be an "embarrassment" to the Department of Justice.

That's because the charges are time-barred by the statute of limitations and because the "86" expressions are political speech protected by the First Amendment that didn't present "true" threats of violence to Trump, said McQuade, the Detroit U.S. attorney from 2010-17 under President Barack Obama, a Democrat.

"Charges against Governor Whitmer would be even more baseless than the charges against James Comey because they are time-barred under the statute of limitations," McQuade told The Detroit News.

"Even if they were not time-barred, charges would fail for the same reasons the charges against Comey will fail."

McQuade, who teaches at the University of Michigan Law School, said the "86" displays do not satisfy the legal test for a "true threat," which the U.S. Supreme Court has defined as a serious expression conveying that the speaker means to commit an act of unlawful violence.

Second, the "86" expressions are political speech protected by the First Amendment, "just as it protects President Trump's statements to 'fight, fight, fight,' or that Gen. Mark Milley should be 'executed,'" McQuade said by email.

The former Detroit U.S. attorney also said a prosecution for the "86" displays would likely be challenged as selective prosecution because others who have used or sold similar displays haven't been charged.

"One need only perform a simple search on Amazon to see all manner of merchants selling T-shirts, hats, and bumper stickers stating '86 47' as well as '86 46' for that matter," said McQuade, the latter a reference to former President Joe Biden, the 46th president.

Troy criminal defense attorney Wade Fink of Wade Fink Law PC said any analysis of possible Whitmer charges must consider Trump’s well-known desire to punish Comey for political reasons, viewing Comey as someone who “weaponized” the justice system against him.

“From a legal standpoint, I would say the likelihood of obtaining a conviction for this charge is almost zero. The danger is this being not normal times, and this administration’s willingness to stretch the law to a point that it’s unrecognizable to the point that anyone that they don’t like can be a target,” Fink said.

“So, depending on how the administration feels about our wonderful governor, that day will determine whether or not there will be any further actions, based on what I’ve seen in other cases.”

Fink, however, agreed that charges against Whitmer under the same law as Comey’s would likely face statute of limitations problems, “meaning it probably can’t be brought.”

What Whitmer said during the October 2020 'Meet the Press' interview

During the 2020 interview on "Meet the Press," Whitmer had criticized a Trump rally in Muskegon where the crowd chanted "lock her up" against Whitmer, roughly 10 days after state and federal officials announced they foiled a kidnapping plot against the governor. Nine suspects ended up being convicted by a jury or taking plea deals in state and federal courts, while five suspects were acquitted in federal and state courts.

In the interview, Whitmer also implored the GOP president and other officials to "bring the heat down" and accused Trump of "inspiring and incentivizing and inciting this kind of domestic terrorism."

A then-spokesman for the Trump campaign said Whitmer’s "rampant hypocrisy would be laughable if it were not so dangerous."

"Her constant partisan rhetoric on cable news drives violence towards President Trump and the first family. It must stop," Chris Gustafson, then a spokesman for the Trump campaign, said in 2020.

Trump's response was evidence that "silly season is officially here," Whitmer campaign spokesman Bobby Leddy said in 2020.

Whitmer and Trump often clashed during the COVID-19 pandemic. The governor called on his administration to take more drastic steps to limit the virus’s spread and to make more equipment available to states, like Michigan. In March 2020, Trump said, at a news conference, that he had instructed Vice President Mike Pence "don't call the woman in Michigan," a reference to Whitmer.

Whitmer and Trump have had a more cordial relationship during his second term.

Whitmer has been praised for lobbying Trump to deliver wins for Michigan, including new fighter jets for Macomb County's Selfridge Air National Guard Base.

Others criticized her for the new diplomacy, arguing that her presence in the Oval Office, in one stance, while the Republican president signed executive orders targeting his political enemies, legitimized his actions.

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(Staff Writer Beth LeBlanc contributed.)

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