Now that the Former FBI Director, James Comey, has been indicted a second time, the Donald Trump administration has upped the ante on the president’s nemesis. This time it’s for threatening the life of the president of the United States. His crime? Comey says he came upon a medley of seashells on a North Carolina beach and formed the numbers 86 47. According to the Department of Justice, 47 refers to President Trump, as most people, excepting Trump, believe he is the 47th president of the United States. There is some controversy, however, as to whether 86 means kill him or means something else, like remove him from office.
There is something about Comey that inspires animosity from the left and right. Former colleagues say he is “a legendary blowhard, an inveterate fibber, and a pretentious prig whose guiding principle is that he alone has access to some mystical code of morality that conveniently justifies his outrageous conduct over the past decade.”
Democrats hate Comey because he helped swing the 2016 election to Donald Trump by writing a letter to Congress less than two weeks before Election Day that he was resuming his investigation of Hillary Clinton’s emails. The letter said the FBI had “learned of the existence of emails that appear to be pertinent to the investigation” into the private email server that Clinton used as secretary of state, and soon halved Clinton’s lead in the polls, imperiling her position in the Electoral College. The investigation found nothing other than what had already been revealed.
Comey’s revelation on the eve of an election was a violation of DOJ policy and earned only criticism from the nonpartisan Inspector General and a gaggle of former attorneys general from across the political spectrum.
Trump has called Comey “scum” and a “dirty cop.” After Trump won the 2016 election, Comey attacked the incoming administration and then crowed about having broken ordinary FBI protocol. A chronic leaker, he found a “personal friend,” who happened to be a law professor, to pipe sensitive FBI information to the media and then argued it wasn’t a leak. Not a leak? As Humpty Dumpty said in Through the Looking Glass, “When I use a word, it means just what I choose it to mean — neither more nor less.”
There is no law against a prosecutor indicting someone he doesn’t like. My boss in the United States Attorney’s office for the Southern District of New York, the legendary prosecutor Robert M. Morgenthau, said, “A man is not immune from prosecution just because a United States attorney happens not to like him.” But the Comey case is different.
The bare-boned three-page indictment is about seashells promoted on Instagram with the caption “Cool shell formation on my beach walk.” After he published the image, Comey got a call from the Secret Service. He took down the image and sheepishly posted, “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.”
I don’t like Comey either, but this indictment should be dismissed, and while it probably will be, I’m not entirely sure.
Most key, “86 47” is miles away from a criminal threat. “47” plainly refers to Trump. But “86” is open to wide interpretation. I am a child of the 20th century, when the slang term 86 evidently originated. I always associated the expression with being ejected from a saloon or perhaps a sign in a diner advising that the establishment was out of the blue plate special. I never conceived of 86 as a violent act. Webster’s defines “86” as “to get rid of or run out of (something), not murder or death.”
Trump, our wordsmith in chief, has said that “86” is a “mob term” for a killing. What mob does he hang out with? He did once upon a time, but quoth the Donald, “nevermore.”
The trial judge should dismiss the Comey indictment based on the First Amendment stricture against abridging political speech. Title 18, Section 871 of the United States Code criminalizes threatening the life of the president. According to the Department of Justice, a threat is defined as “an avowed present determination or intent to injure.” Some courts have held that the government need not prove that the defendant intended to carry out the threat. Still, Acting Attorney General Todd Blanche, who may use this Comey prosecution to “acting” from his title, may have shot himself in the foot: The Fourth Circuit, where North Carolina is, has not.
The Fourth Circuit held that “when a true threat against the person of the President is uttered without communication to the President intended, the threat can form a basis for conviction,” but “only if made with a present intention to do injury to the President. The issue of the defendant’s intent is a question of fact for the jury, to be determined from the words themselves and the circumstances surrounding their use.” That could mean a Comey trial.
In 1968, Robert Watts, a Vietnam War protester, stated: “I am not going [to Vietnam]. If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J. [the president].” Litigation ensued. The Supreme Court said even that statement about aiming a long gun at the president wasn’t enough to make out a threat. First Amendment-protected political speech, the Court ruled, “is often vituperative, abusive, and inexact”—and Watts’s statement was “political hyperbole,” not a “true threat,” hence not criminal.
Comey could get the case thrown out under the doctrine of vindictive prosecution. If a defendant can show that his prosecution is retribution for his prior exercise of a legal or constitutional right, then a judge can toss the indictment before trial.
Trump and Comey are political enemies, and I wish they’d both go away. (That’s not a threat, just a dream.) They relish rubbishing each other. In September 2025, Trump exhorted his then Attorney General Pam Bondi to indict “Comey” (and others) and that “JUSTICE MUST BE SERVED, NOW!!!” Bondi filed a charge of leaking and perjury, but came up empty-handed. The seashells indictment, Comey will argue, is an even more vindictive prosecution.
Then, there is the doctrine of selective prosecution, ignored by the Stone Age approach of the Trump Justice Department. In 1940, when then Attorney General and later U.S. Supreme Court Justice Robert Jackson addressed a confab of U.S. Attorneys at the Justice Department, he stressed it was the tradition of American prosecutors not to single out personal enemies for criminal prosecution, meaning he had been singled out for criminal charges, while others who had engaged in similar conduct had not. Innumerable politicians and commentators have uttered the number “86” at the neighborhood bar without being prosecuted, including right-winger Jack Posobiec, who tweeted “86 46” in 2022 regarding President Joe Biden and never went to prison. Todd Blanche lamely said that any comparison between Posobiec’s and Comey is “just completely not true” and that the issues are “different.” Oh, please.
This second Comey indictment may earn Todd Blanche the veneration of his client, Donald Trump, and if it somehow gets to trial, Trump will milk every day of it. Still, I predict that Comey won’t be convicted, and even if he is, he won’t go to jail for his beach walk.
