DOJ Defends Prosecution of Former FBI Director James Comey Over '86 47' Social Media Post

The Department of Justice is advancing its criminal case against former FBI Director James Comey, defending an unprecedented prosecution that centers on a photograph of seashells. In motions filed late Tuesday in the Eastern District of North Carolina, federal prosecutors argued there is 'no serious dispute' that a May 2025 social media post by Comey constituted a true threat against the life of President Donald Trump.

The case tests the boundary between protected political speech and criminal conduct in a heightened national threat environment, while raising structural questions about the use of federal law enforcement against prominent political adversaries. The government's filings represent its most detailed explanation yet of why it believes a seemingly ambiguous image warrants felony charges.[3]

The indictment, handed down by a federal grand jury in April 2026, charges Comey with one count of making a threat against the president and a second count of transmitting an interstate threat. The charges stem from an Instagram post in which Comey shared an image of seashells arranged on a beach to spell '86 47.'

Comey, who deleted the post shortly after it was published and began receiving backlash, has stated he found the shells already arranged in that pattern while walking on a North Carolina beach. He maintains that he did not arrange the shells himself and did not intend to communicate a violent message, noting that he removed the image as soon as he realized some viewers interpreted the numbers as a call to violence.[1][3]

The government’s legal theory relies on interpreting the slang term '86' as a directive to kill, combined with '47,' representing the 47th president. Prosecutors argue that an objective viewer would read the post as a coded message meaning 'Kill President Trump.'

To support the intent requirement necessary for a criminal conviction, the Justice Department alleges Comey posted the image to deliberately stir controversy and generate viral attention for his forthcoming novel, FDR Drive. The book features a storyline about a prosecutor pursuing a far-right social media personality who calls out adversaries by name and inspires his followers to commit violence against them.[2][3]

The Justice Department explicitly contextualizes the post within the current political climate, noting recent assassination plots and attempts against Trump in the months surrounding the incident. Prosecutors argue this backdrop makes the seashell image actionable rather than mere rhetorical hyperbole. They also point to a text message Comey received from his wife two minutes before the post went live, which included a screenshot defining '86' as 'to get rid of or refuse service.'

Prosecutors argue this demonstrates his awareness of the term's exclusionary meaning, while Comey's publishing agent reportedly texted him that the post had 'gone viral'—to which Comey allegedly replied that it was not his intention, but he would be 'OK if it sells books.'[3]

Comey’s defense team has filed multiple motions to dismiss the case, arguing the prosecution fails on both constitutional and factual grounds. They contend the phrase '86 47' is a ubiquitous political slogan meaning to vote out or eject the president, noting its widespread appearance on thousands of items of merchandise sold online and its regular display at protests.

By prosecuting the use of a common political idiom, the defense argues, the Justice Department is attempting to suppress core political speech protected by the First Amendment. Legal experts note that the ambiguity of the slang term—which Merriam-Webster primarily defines as 'to throw out' or 'to refuse service to'—creates a high hurdle for prosecutors attempting to prove a definitive threat.[1][4]

Beyond the First Amendment defense, Comey’s lawyers allege the case is a vindictive and selective prosecution driven by Trump’s long-standing personal animosity toward the former FBI director, whom he fired in 2017. The defense claims that the government singled out Comey for publishing a statement of political opposition that thousands of others have used without facing federal indictments.

In a related court filing, the defense also alleged that federal agents subjected Comey to physical and electronic surveillance as he drove along Interstate 95 from North Carolina to Virginia the day after he posted the photograph.[5]

The Justice Department firmly rejects the claim of vindictive prosecution, stating in its Tuesday filings that the decision to indict was made independently by career prosecutors in the U.S. Attorney’s Office for the Eastern District of North Carolina.

They assert the charges did not stem from a directive from Acting Attorney General Todd Blanche or the White House. The presiding federal judge must now determine whether the ambiguity of the phrase and the political context of the post allow the case to proceed to a jury trial, which is currently scheduled for October 2026.[3]

The outcome of the pre-trial motions will likely set a significant precedent for how federal courts handle ambiguous social media posts involving political figures. If the judge allows the case to proceed, prosecutors will face the burden of convincing a jury that the seashell arrangement met the strict legal definition of a 'true threat' rather than protected expression.

Conversely, a dismissal would mark the second time a federal case against Comey has collapsed in recent months, following the dismissal of an earlier, unrelated case in Virginia over the unlawful appointment of a prosecutor.[1][3]