Comey Indicted on Threat Charges Related to Instagram Post with ’86 47

The Legal Standard for Threat Charges

On April 28, 2026, a federal grand jury in North Carolina charged former FBI Director James Comey with two offenses: threatening the life of the president and transmitting a threat in interstate commerce. The allegations stem from a May 2025 Instagram post featuring seashells arranged to form the numbers ’86 47,’ accompanied by the caption Cool shell formation on my beach walk. The White House and its officials maintained that the post, which uses ’86’ as slang for ‘nix’ or ‘remove’ and ’47’ as a reference to former President Donald J. Trump’s presidential number, constituted a veiled threat to his life. Comey removed the post after facing public backlash, asserting he was unaware some individuals associated the numbers with violence and opposed any form of violence.

“The White House and its officials maintained that the post, which uses '86' as slang for 'nix' or 'remove' and '47' as a reference to former President Donald J. Trump’s presidential number, constituted a veiled threat to his life.”

Prosecutors must demonstrate that the post satisfies the Supreme Court’s 2023 Counterman v. Colorado standard for a ‘true threat.’ This requires both an objective assessment of whether a reasonable person would perceive the message as threatening and a subjective determination that the speaker was reckless about that perception. Legal experts are divided on whether the post, which has been adopted by Trump supporters as a symbol of political dissent, meets this threshold. The First Amendment’s protection of political speech complicates the case, as the numbers have been used by protesters to signal opposition to Trump without implying violence. Merriam-Webster defines ’86’ as slang for ‘to throw out,’ ‘to get rid of,’ or ‘to refuse service to,’ with a note that the sense of ‘to kill’ is recent and not included in the dictionary. This definition highlights the ambiguity of the term, which has been weaponized by Trump’s allies to frame Comey’s post as a threat.

Context and Precedent

This marks the second criminal case against Comey, who was dismissed by Trump in 2017 after leading an FBI investigation into Russian election interference. A prior indictment alleging Comey lied to Congress was dismissed in November 2, 2025 due to procedural errors involving an improperly appointed prosecutor. U.S. Secret Service agents interviewed Comey last May regarding the seashell photo, which the administration claimed was a threat. Judge Cameron Currie, who dismissed the earlier indictment, left the possibility open for the government to refile the case with a properly appointed prosecutor. The current charges follow heightened DOJ scrutiny of Trump’s political adversaries under Acting Attorney General Todd Blanche. Critics argue the prosecution reflects selective enforcement, while the administration maintains it is a lawful investigation into potential threats to national security. Comey’s 2017 firing was a pivotal moment, as it marked the first time a U.S. president openly defied a federal agency’s leadership. This act of executive overreach set a precedent for politicizing law enforcement, which may have influenced the current indictment.

Legal and Political Implications

Legal scholars caution that the case could set a precedent for criminalizing ambiguous political speech. Michael Gerhardt, a constitutional law professor at the University of North Carolina, called the indictment ‘thin’ and questioned the DOJ’s motives, noting the post’s widespread use by Trump supporters as a nonviolent political symbol. Former federal prosecutor Jimmy Gurulé criticized the charges as an ’embarrassment to the American criminal justice system,’ arguing the DOJ cannot prove Comey’s intent to threaten Trump. The defense is likely to argue the post was innocent beach art, not a threat, emphasizing Comey’s public opposition to violence. Additionally, the case underscores the tension between national security and free expression. If prosecutors succeed, it could deter political dissent by criminalizing symbolic speech with potential violent connotations. Conversely, a dismissal would reinforce protections for political speech, even when it involves ambiguous or potentially threatening symbols. The trial will test the judiciary’s ability to distinguish between protected expression and actionable threats, with implications for future cases involving public figures and social media.

Broader Concerns About Selective Enforcement

“Merriam-Webster defines '86' as slang for 'to throw out,' 'to get rid of,' or 'to refuse service to,' with a note that the sense of 'to kill' is recent and not included in the dictionary.”

The case raises critical questions about the balance between national security and free expression. If prosecutors succeed, it could deter political dissent by criminalizing symbolic speech with potential violent connotations. For example, the 2023 Counterman v. Colorado ruling emphasized that speech must be evaluated based on the speaker’s intent, not just the listener’s interpretation. However, the DOJ’s pursuit of Comey may signal a broader trend of using legal tools to target political opponents. This aligns with concerns about the politicization of the Justice Department, as seen in the 2020 case of former CIA Director John Brennan, who was also indicted under similar charges. The DOJ also indicted the Southern Poverty Law Center for bank fraud and money laundering, further fueling accusations of selective enforcement. The implications extend beyond Comey’s case, as it could embolden future administrations to use legal mechanisms to silence critics. Conversely, a defense victory would reaffirm the First Amendment’s protection for political speech, even when it involves ambiguous or potentially threatening symbols. The outcome of this case will shape how courts handle similar cases in the future, particularly in the digital age where social media blurs the line between personal expression and public threat.

The Ambiguity of ’86 47′

The ambiguity of the ’86 47′ reference remains a central point of contention. While Trump and his allies interpret it as a call to violence, others, including Comey’s attorneys, argue it was a harmless political statement. This divergence reflects broader debates about how to balance free speech with public safety. For instance, the 2023 Counterman v. Colorado ruling acknowledged that even speech with potential violent connotations is protected unless the speaker’s intent is proven. However, the DOJ’s case hinges on demonstrating Comey’s subjective recklessness, a standard that is difficult to meet without direct evidence of intent. Additionally, the case’s political context complicates its legal interpretation. Critics argue that the DOJ’s repeated targeting of Trump’s critics, including Comey and Brennan, undermines the principle of impartial justice. This raises concerns about the Justice Department’s independence, a critical issue in maintaining public trust in the legal system. The trial will thus serve as a litmus test for the judiciary’s commitment to both legal rigor and constitutional principles.