There is nothing threatening about Jim Comey’s alleged threat — at least not literally.
The Justice Department filed charges on Tuesday against the former FBI director for a picture he posted on Instagram last May. The photo depicted seashells on a beach, arranged to spell out the numbers “86 47.” Comey included his own caption: “Cool shell formation on my beach walk.”
In restaurant parlance, to “86” an order is to cancel it. The phrase “86 47” can be found on T-shirts, suggesting political opposition to Donald Trump, the 47th president of the United States, and his policies. According to the indictment, however, the photo depicts something more sinister: a threat to assassinate Trump.
The day after the incident in 2025, Comey was interviewed by Secret Service agents. Comey immediately took down the post and denied any intent to convey a threat. “I didn’t realize some folks associate those numbers with violence,” he said. “It never occurred to me, but I oppose violence of any kind, so I took the post down.”
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.
Former FBI Director James Comey
Nevertheless, the president and his allies pounced. Trump called the former director “a dirty cop.” He ridiculed Comey’s denial, stating, “He knew exactly what that meant. A child knows what that meant. If you’re the FBI director and you don’t know what that meant, that meant assassination. And it says it loud and clear.” Tulsi Gabbard, Trump’s director of national intelligence, said Comey should be jailed for the post.
This new indictment, filed in North Carolina where the post occurred, is suspect for several reasons. First, Trump has already publicly demanded criminal charges against Comey for perceived grievances. Trump apparently still harbors a grudge over Comey’s refusal to pledge his loyalty to him in 2017, when Comey declined to halt the investigation into Russia’s efforts to influence the 2016 presidential elections.
As recently as September, Trump posted on Truth Social, possibly by accident, a demand that then-Attorney General Pam Bondi indict Comey and other political enemies for unspecified crimes. In response, Bondi replaced the interim U.S. attorney in the Eastern District of Virginia with Lindsey Halligan, who proceeded to almost immediately indict Comey on baseless charges of making false statements to Congress. The charges were later dismissed when a court found Halligan’s appointment legally invalid, and are now barred by the statute of limitations.
The timing is also suspect. The conduct described in this new indictment occurred almost a year ago. If this were a serious crime, the Justice Department would not have waited so long to indict. Only after the false statements charges fell apart did the DOJ treat this incident as a crime.
Calling it a crime is generous. The legal theory behind this indictment is flimsy, at best. Under First Amendment jurisprudence, a threat may be prosecuted only if it amounts to a “true” threat, which the Supreme Court has defined as a serious expression conveying that a speaker means to commit an act of unlawful violence. In light of the vagueness of the post’s meaning, its capability of various interpretations and Comey’s immediate denial, it is difficult to imagine a unanimous jury finding beyond a reasonable doubt that this image of seashells met the legal definition of a true threat.
But a jury may never actually hear the case because it seems unlikely to survive a First Amendment challenge. In political speech, we hear politicians frequently brag about how they “fight” for their constituents. Trump himself is fond of saying “fight, fight, fight,” the words he first uttered after an assassination attempt in 2024 in Butler, Pennsylvania.
As Trump prepared to lambast the press Saturday night at the White House Correspondents’ Dinner, spokesperson Karoline Leavitt said “there will be shots fired tonight.” It was an ironic choice of words in light of the gun violence that soon followed, but no one accused her of making any threats. The phrase “86,” as a popular idiom, also has multiple definitions and slang interpretations. It could simply mean to impeach the president or to defeat him politically.
Ultimately, this case seems like a prime contender for a motion to dismiss for selective prosecution. Given that this phrase can easily be found on merchandise, and is common enough that it has been used by plenty of other people who have not been prosecuted, singling out Comey alone with charges is the quintessential definition of selective prosecution.
Instead, this charge seems like one more effort to exact revenge against one of Trump’s rivals. It also seems consistent with DOJ official Ed Martin’s pledge to “name and shame” those who allegedly weaponized government in prior administrations. Even if the Justice Department cannot convict Comey, prosecutors can make his life miserable for several months by forcing him to pay for a lawyer, occupy his time and attention, emotionally exhaust his family and disparage his reputation.
Ultimately, the only true threat here is to the legitimacy of the Department of Justice.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst.