The Justice Department is defending its prosecution of former FBI Director James Comey against charges that he threatened President Trump through a May 2025 Instagram post showing seashells arranged to form the numbers “86 47,” according to court documents and statements from federal prosecutors.
Comey was indicted on April 28, 2026, on two counts: threatening the president in violation of federal law and transmitting a threat in interstate commerce. Acting Attorney General Todd Blanche announced the charges, saying prosecutors believe the seashell arrangement constituted a serious expression of intent to harm the president.
Prosecutors argue that “86,” which can mean to get rid of or remove something, combined with “47”—referring to Trump as the 47th president—forms a coherent threat. The government contends that a reasonable recipient of the post would interpret the image as threatening Trump’s life, according to court filings and public statements from the DOJ.
Comey’s legal team filed a motion to dismiss on July 27, arguing the post is protected political speech under the First Amendment and does not meet the legal definition of a “true threat.” Under Supreme Court precedent, speech qualifies as a true threat only when it expresses a serious intent to commit violence—not mere political hyperbole or opposition to a political figure.
Comey’s attorneys wrote that the phrase “86” has no violent connotation in common usage and is frequently used in non-threatening contexts. They cited examples including use by former Republican Rep. Matt Gaetz when discussing the removal of GOP leaders. The defense team also noted that Comey deleted the post within hours and said at the time he opposed violence of any kind.
The prosecution marks the second time Trump’s DOJ has pursued charges against Comey. His first indictment, filed in September 2025 on charges of false statements and obstruction of Congress, was dismissed in November 2025 when a federal judge found that the prosecutor who secured it, Lindsey Halligan, had been unlawfully appointed as interim U.S. attorney. The DOJ has appealed that dismissal.
Comey has also accused the government of vindictive and selective prosecution, arguing that Trump’s public statements calling for his prosecution demonstrate political motivation. In his July motion, Comey alleged that the Secret Service conducted illegal electronic surveillance of him at the DOJ’s request, a claim the government has not publicly addressed in available filings.
The case has drawn scrutiny from legal scholars and First Amendment experts. Several professors have filed court documents supporting dismissal, arguing that the prosecution sets a dangerous precedent for criminalizing political opposition. The case is expected to proceed toward trial, with Comey scheduled to be arraigned in late September 2026.
Sources
- Justice Department — indictment announcement and charges against Comey
- CBS News — Comey’s motion to dismiss, First Amendment arguments, and case details
- NBC News — Comey’s legal team arguments and true threat doctrine explanation
- The Hill — court filings and prosecution defense arguments
- NPR — initial indictment details and prosecutorial claims
- The Guardian — case background and seashell post context
