Courts Poised to Dismiss Blatantly Unconstitutional Charges Against James Comey

Is it plausible that James Comey, a former federal prosecutor, deputy attorney general, and FBI director, publicly threatened to murder President Donald Trump? No, it is not. Yet that is the claim put forward by W. Ellis Boyle, the U.S. attorney for the Eastern District of North Carolina, in an indictment dated April 28.

That improbable accusation rests on a picture Comey shared on Instagram in May 2025 while relaxing in North Carolina. Captioned “cool shell formation on my beach walk,” the photo depicted seashells arranged in the sand to spell out the sequence “86 47.” According to the indictment, those four digits constitute two federal felonies, each carrying up to five years in prison. The charges include one count under 18 U.S.C. 871, which targets someone who threatens to “take the life of” or “inflict bodily harm upon” the president, and one count under 18 U.S.C. 875(c), which criminalizes interstate communications that threaten to “injure the person of another.”

These counts rest on two interpretations of the seashell photograph, only one of which is reasonable. Boyle contends that the “47” refers to Trump, who during his current term is the 47th president, a reading that is common consensus. But he also claims that the “86” is meant to signal a command to “kill,” so that the combination of the two figures yields a message that, to a reasonable recipient familiar with the circumstances, would be read as a serious intent to harm the President of the United States.

This interpretation is linguistically and legally controversial, to put it mildly. It clashes with the usual slang for eighty-six, which began in the mid-20th century as a way to expel unwanted bar patrons. It also conflicts with more than half a century of Supreme Court doctrine explaining what kinds of statements count as “true threats,” one of the few carved-out exceptions to the First Amendment. The first point reinforces the second: definitions of true threats depend on the speaker’s mental state and the audience’s reasonable understanding of the message.

This marks the second time the Trump administration has sought to prosecute Comey, who holds a fraught place on the president’s rival list. “We can’t delay any longer,” Trump wrote in a September post on Truth Social, publicly directing the attorney general at the time to bring charges against Comey. “JUSTICE MUST BE SERVED, NOW!!!” Within days, an indictment accusing Comey of lying to Congress was issued at Trump’s urging. Yet a federal judge dismissed that indictment two months later after concluding that the appointing official—an acting U.S. attorney who had been named by a Trump ally—had not been lawfully placed in office.

Because Comey testified before the Senate in September 2020—the basis for the earlier case—the deadline for charging him under his statements then has passed. By contrast, the newly alleged offense rests on an image posted a year earlier, so Boyle’s office is within the statute of limitations. Yet this is the sole respect in which the present case seems stronger than the previous one, which hinged on a contested reading of Comey’s testimony. The current case, by contrast, relies on a reading that seems plainly implausible, making the attempt to criminalize Comey’s speech constitutionally suspect.

What Does ‘Eighty-Six’ Mean?

The verb “eighty-six” means to reject, discard, or remove. This sense comes from Webster’s New Universal Unabridged Dictionary, which traces it to a more specific usage: refusing service to an undesired or unwelcome patron at a bar or restaurant. Webster’s notes that the latter sense appeared in the early 1960s and may link to a rhyme with “nix.”

The Oxford English Dictionary (OED) cites an earlier instance of eighty-six in that sense. In 1942, the Washington, D.C. Times Herald explained that “‘eighty-six’ is the trade term for refusing to serve a patron any more liquor.” A 1968 New York Times article similarly described “you’re 86’d” as a barroom phrase meaning that someone is “banned in here.”

That meaning has nonetheless travelled far beyond bars. In the Mel Brooks/Buck Henry sitcom Get Smart, which aired from 1965 to 1970, the bumbling spy’s codename was Agent 86, signaling that he was manifestly unfit for his job. In 1971, UPI’s Hollywood correspondent referred to singers whose TV shows “have been eighty-sixed.” In the 1972 film The Candidate, a media adviser tells Robert Redford’s character that he needs to “eighty-six the sideburns.”

A decade later, a Miami Herald critic lamented a restaurant’s limited number of entrées: “On a menu with 17 main dishes, nearly half have been ‘eighty-sixed,’ meaning unavailable.” In 1990, the Binghamton Press and Sun-Bulletin reported that President George H.W. Bush had “eighty-sixed broccoli from his diet.” A 2000 Los Angeles Times piece about the Y2K crisis noted that the region’s biggest restaurant chains had “eighty-sixed” New Year’s computer gremlins. In 2010, a Hammond, Indiana, Times columnist wrote that felony charges against a city council candidate “have been eighty-sixed.” A 2020 New York Times crossword clue used eighty-sixed for “axed.”

And so on. In its broad sense, the OED defines eighty-six as meaning to reject or abandon. Applied to a politician, the term could imply blocking his agenda, removing him from power, or otherwise curtailing his influence.

Trump’s allies have used the term in that sense as well. In 2024, Matt Gaetz, then a Florida congressman, boasted that “we’ve now 86’d” former House Speaker Kevin McCarthy (R–Calif.), former Republican National Committee Chairwoman Ronna McDaniel, and former Senate Majority Leader Mitch McConnell (R–Ky.), claiming that better days lie ahead for the Republican Party.

The deployment of eighty-six in relation to Trump itself predates Comey’s Instagram post. During a 2020 TV interview, Michigan Gov. Gretchen Whitmer, a Democrat, stood beside a table displaying a sticker reading “86 45,” referring to Trump’s place in the line of succession during his first term. Detractors could also purchase T-shirts bearing that slogan, updated after his 2024 victory. Under the Biden administration, Republicans could also sell “86 46” stickers and T-shirts to promote their political stance.

Given this backdrop, it strains credibility to suggest that Comey was threatening to assassinate the President simply by sharing a seashell photo. In a May 3 interview on NBC’s Meet the Press, Acting Attorney General Todd Blanche admitted that the slogan at the center of Comey’s indictment appears “constantly posted” without triggering federal charges, though he also asserted that all such posts qualify as “threatening statements against President Trump.” He claimed that the case against Comey was strengthened by additional evidence found during an 11-month FBI probe. He did not specify what that evidence entailed, and neither does the indictment.

“I posted earlier a picture of some shells I saw today on a beach walk, which I assumed carried a political message,” Comey wrote on Instagram after removing the post in response to criticism. “I didn’t realize some people associate those numbers with violence. It never occurred to me, but I oppose violence of any kind, so I took the post down.”

As First Amendment scholar Eugene Volokh noted after the indictment was announced, “Nothing in Comey’s statement can be reasonably understood as indicating that he intends to kill Trump. Rather, its reasonable reading is that Comey desires Trump’s removal—perhaps through impeachment, or as with President Nixon, resignation under the threat of impeachment.”

Trump presents that explanation as transparently dishonest. “’86’ is a mob term for ‘kill him,’” he insisted on Truth Social the day after the indictment. “They say 86 him! 86 47 means ‘kill President Trump.’ James Comey, who is a Dirty Cop, one of the worst, knows this fully!”

Trump is correct that eighty-six, depending on the context, can carry a meaning of killing someone. In a 1990 story about a white supremacist convicted of murder, for example, the Associated Press quoted a witness who said the defendant told him, “I just eighty-sixed” the victim. But that use is only one meaning among many. Accepting Trump’s interpretation as the only possible one would require believing not only that everyone who wears an “86 47” shirt is advocating murder, but also that Gaetz confessed to killing McCarthy, McDaniel, and McConnell, who remain alive.

This linguistic dispute is not merely a pedantic exercise. It bears directly on whether Comey’s Instagram post could be punished under the First Amendment. Under controlling Supreme Court decisions, it cannot be.

What Is a ‘True Threat’?

Sixty years before Comey faced charges over his alleged threat to the president, Robert Watts confronted the same accusation. Watts, aged 18, took part in a Vietnam War protest at the Washington Monument on August 27, 1966. “I have already received my draft classification as 1-A,” he told fellow demonstrators, “and I must report for my physical this Monday coming. I am not going. If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.”

The other protesters laughed, but the Secret Service saw it as a threat to assassinate President Lyndon B. Johnson. The Supreme Court disagreed in Watts v. United States (1969).

“A statute that criminalizes a form of pure speech must be interpreted with the First Amendment’s commands in mind,” stated the unsigned portion of the majority opinion. “What constitutes a threat must be distinguished from what is constitutionally protected speech.”

The law, the Court said, must prove a true “threat.” “We do not think the kind of political hyperbole indulged in by the petitioner fits within that statutory term. We must interpret Congress’s language against the backdrop of a deep-seated national commitment to open, robust debate about public issues—an arena that can include vehement, caustic, and sometimes sharply critical attacks on government and public officials.”

The Court concluded that Watts’s offense was “a crude but politically charged way of voicing opposition to the President.” Considering the surrounding circumstances—the conditional nature of the statement and the audience’s reaction—the justices reasoned that interpretation could only go one way.

Watts, described by the Associated Press as a Harlem civil rights worker, was part of a W. E. B. Du Bois Club, a youth organization linked to the Communist Party. He would likely not have aligned with the petitioners in Virginia v. Black (2003), a landmark decision that also addressed the difference between true threats and protected speech.

That later case involved three men convicted under a Virginia statute that criminalized cross burning in public or on someone else’s property with the intent to intimidate. Barry Black organized a Ku Klux Klan rally on private land with permission and included a cross burning; Richard Elliott and Jonathan O’Mara attempted to burn a cross on the front lawn of a Black neighbor in Virginia Beach.

“While a burning cross does not invariably convey intimidation,” wrote Justice Sandra Day O’Connor for the majority, “often the person who burns the cross intends that the recipients fear for their safety. When cross burning is used to intimidate, few messages carry more force.”

The First Amendment permits a state to ban a true threat, O’Connor noted, and that category covers statements where the speaker intends to convey a serious expression of an intent to commit unlawful violence against a specific individual or group. She added that the speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear brings, as well as from the possibility that the threatened violence will occur.

In light of those goals, O’Connor concluded that Virginia’s cross-burning statute did not violate the First Amendment to the extent that it banned cross burning with the intent to intimidate. But in a portion of her opinion joined by three other justices, she found the law unconstitutional because it declared cross burning to be prima facie evidence of intent to intimidate, effectively turning the act itself into proof of the required mental state.

Does Intent Matter?

The mental state required to convict someone of making threats also figured prominently in Elonis v. United States (2015). The case involved Anthony Elonis, a Pennsylvania man whose Facebook posts—some styled as rap lyrics under the alias “Tone Dougie”—shocked his estranged wife and coworkers at Dorney Park & Wildwater Kingdom.

In October 2010, Elonis posted a Halloween-haunt photo featuring him in costume, brandishing a toy knife to the throat of a coworker who had accused him of harassment. “I wish,” the caption read.

After Elonis was fired over that message, he posted a response in which he mentioned “sinister plans for all my friends,” noted that he had access to keys for the park, and asked, “You think it’s too dark and foggy to secure your facility from a man as mad as me?” He added, “Even without a paycheck, I’m still the main attraction. Who knew Halloween Haunt could be so damn terrifying?”

Elonis was arrested under Section 875(c), and he was convicted on four of five counts, receiving a 44-month sentence. After the conviction was challenged, the Third Circuit held that Section 875(c) does not require proof that the speaker subjectively intended to threaten. It told the jury to consider whether a reasonable person would interpret the statements as a genuine expression of intent to inflict bodily harm or take a life.

That “reasonable person” standard, however, fell afoul of the Supreme Court in Elonis. Chief Justice John Roberts, writing for a majority including six colleagues, noted that the conviction rested entirely on how a reasonable reader would interpret Elonis’s words, not on the defendant’s own understanding. He warned that relying on a “reasonable person” standard in criminal law risks turning liability into negligence, which is inconsistent with the traditional requirement that a crime involve a guilty mental state. The Court thus vacated the conviction and remanded, but on remand the Third Circuit deemed the error harmless and Elonis served his sentence despite the resolution in his favor at the high court. The Court did not, however, specify what level of culpability would suffice to prove a “true threat.”

The Supreme Court revisited the issue eight years later in Counterman v. Colorado (2023) after Billy Counterman bombarded a local singer—identified in the case as “C.W.”—with hundreds of Facebook messages that unsettled her. In Counterman, Justice Elena Kagan explained that while some messages were mundane, others suggested Counterman might be watching the singer, and several expressed anger or threatened harm. Counterman was convicted under Colorado’s stalking statute, which punishes repeated communications that would cause a reasonable person to suffer serious emotional distress and that did in fact have that effect. On appeal, Counterman argued that prosecutors had to prove that he appreciated the threatening nature of his messages. The Colorado Court of Appeals rejected that argument, saying evidence of subjective intent was unnecessary.

The Supreme Court disagreed. It remanded the case to the Colorado Court of Appeals, which in 2024 ordered a new trial. Justice Kagan, writing for the majority, stated that true threats of violence fall outside First Amendment protection and may be punished as crimes. The Court held that the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements, but that recklessness—conscious disregard of a substantial risk that the communications would be viewed as threats—can suffice. In other words, the state must show that the defendant knowingly disregarded a real risk that his words would be interpreted as threatening violence.

What Convicting Comey Would Require

These precedents do not bode well for the federal case against Comey. To secure a conviction, prosecutors would need to establish two elements: first, that the “86 47” image can reasonably be read as a serious expression of intent to commit violence; and second, that Comey consciously disregarded a substantial risk that the post would be understood that way.

Given the range of potential meanings for “eighty-six,” satisfying the first clause will be challenging. The phrase is widely used without any homicidal aim. People wear ninety-six shirts or display bumper stickers and other merch with similar messaging from various sellers on platforms like Amazon and Etsy. Under the logic that Trump’s adversaries might apply, those sellers and customers could be deemed complicit in threatening his life, which hardly aligns with what a reasonable listener would conclude.

Like Robert Watts at the Vietnam War protest, Comey presented his message in a lighthearted fashion. Considering how ubiquitous “86 47” has become, it seems quite plausible that he did not contemplate the possibility that it would be interpreted as a threat of violence, let alone deliberately ignored that risk.

On the indictment’s day, Blanche offered a muddled counterpoint by accusing Comey of speaking out about Trump “at a moment when the country has witnessed violent incitement leading to deadly acts against President Trump and other elected officials.” FBI Director Kash Patel echoed this line, conflating true threats with incitement by asserting that Comey “encouraged a threat against President Trump and posted it on Instagram for all the world to see.”

Under Brandenburg v. Ohio, incitement becomes a crime only if it is directed at encouraging imminent lawless action and is likely to produce such action. But Comey is not charged with incitement; the indictment targets a threat to kill the president.

Blanche added that “the temperature needs to be turned down,” suggesting that Comey’s conduct was feeding a climate of political hostility. The White House itself has levelled a similar charge at Democrats who call Trump a fascist, arguing that such rhetoric fuels violence. Whatever one makes of those epithets, they are unquestionably protected political speech. So too is Comey’s seashell photograph under the First Amendment.