The Department of Justice defended its prosecution of former FBI Director James Comey on August 19, filing court motions arguing that his May 2025 Instagram post of seashells arranged as “86 47” constituted a genuine threat to President Donald Trump and was not protected political speech.
Federal prosecutors wrote that “there is no serious dispute that an objective viewer of Comey’s post could read it to mean ‘Kill President Trump.'” They argued the post was a deliberate coded message sent to Comey’s roughly 200,000 Instagram followers, timed to coincide with the release of his novel “FDR Drive,” a fictional work in which a charismatic leader inspires violence against his enemies.
Prosecutors cited text messages between Comey and his publishing agent as evidence of intent. Two minutes before the post, Comey’s wife texted him a screenshot defining “86” as meaning “to get rid of or refuse service.” After the post provoked an outcry, Comey’s agent texted that he had “gone viral,” and Comey responded that it was “not my intention, but I’ll be OK if it sells books.”
The DOJ filing also questioned Comey’s account that he had simply found the seashells arranged that way on a North Carolina beach. Prosecutors noted the shells were located 4 miles down from beachfront property where Comey was staying, in an area separated from the ocean by a sand dune, and said there was no evidence anyone else had arranged or photographed them.
Comey’s Defense and the Vindictive Prosecution Claim
Comey’s legal team countered that the post was protected political speech under the First Amendment, arguing the phrase “86 47” has long been a well-known political slogan meaning “remove” or “eject” the president. His lawyers contend that thousands of items bearing this phrase have been sold online and regularly displayed at protests.
The defense also argued that investigators failed to develop compelling evidence of intent. An FBI search of internal databases found no conclusive link between Comey and the term “86” as slang for murder. The FBI even interviewed Salvatore “Sammy the Bull” Gravano, a government cooperator who worked with Comey as a young prosecutor, and Gravano said he had no recollection of ever discussing the term with Comey.
Comey’s lawyers argue the case constitutes vindictive prosecution, pointing out that his earlier indictment—filed in September 2025 on unrelated charges of perjury and obstruction—was dismissed in November 2025 after a judge ruled that the prosecutor, Lindsey Halligan, had been unlawfully appointed. The defense contends that prosecutors immediately retaliated by bringing the seashell charges months later.
The DOJ denied allegations of vindictiveness, with U.S. Attorney W. Ellis Boyle filing an affidavit stating that “no one ordered, directed or pressured” him to indict Comey and that the decision was made independently by his office. However, the timing of the indictment—coming after Trump fired Comey as FBI director in 2017 and repeatedly called for his prosecution—has drawn scrutiny from legal observers and former DOJ officials.
The case hinges on whether Comey’s post meets the legal threshold of a “true threat” under the First Amendment. Federal courts have established that true threats of violence fall outside First Amendment protection, but prosecutors must prove the defendant knowingly intended the statement as a threat or knew it would be understood as such. Comey is scheduled to be arraigned on September 30, with trial set for October 21, 2026, in federal court in New Bern, North Carolina.
Sources
- PBS NewsHour — DOJ motion defending prosecution, prosecutors’ arguments about seashell post as threat, Comey’s defense claims
- CNBC — DOJ filing citing Comey’s novel “FDR Drive,” prosecutors’ coded-message theory, Comey’s text exchanges with publishing agent
- Washington Post — DOJ arguments regarding intent and book sales, Comey’s background and Trump’s firing of him
- Carolina Journal — Trial and arraignment dates, federal court jurisdiction in North Carolina
