Acting Attorney General Todd Blanche asserts that nearly a year-long inquiry has yielded “a body of evidence” that undergirds the federal indictment of former FBI Director James Comey, a charge that, somewhat implausibly, accuses him of publicly threatening to assassinate President Donald Trump. Blanche made that claim in a recent interview on NBC’s Meet the Press, stating that this evidence goes beyond the May 15 Instagram post at the heart of the case, which shows a photo of seashells arranged in the sand to spell out “86 47″—a widely used expression of opposition to the president.
Although Blanche refused to spell out the nature of the additional evidence, he argued that it would establish the “intent” required to secure a conviction. That assertion strikes many as doubtful, particularly with regard to the first count in the indictment, which accuses Comey of violating 18 USC 871 by “knowingly and willfully” threatening to take the life of and to inflict bodily harm upon the President of the United States.
Comey is charged, according to the indictment, with that offense because he “publicly post[ed] a photograph on the internet social media site Instagram” that “depicted seashells arranged in a pattern making out ’86 47,’ which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States.” The core issue—how “a reasonable recipient” would interpret the message—remains constitutionally critical under Supreme Court rulings that draw a line between “true threats” and protected speech.
Given the common slang meaning of eighty-six, roughly understood as to “reject,” “discard,” or “abandon,” and the ubiquity of the specific slogan at stake, which you could find on a broad range of T-shirts and bumper stickers available to order from Amazon at this very moment, it strains credulity to imagine that the phrase could reasonably be read as a murder threat. And that is not the only flaw in this charge.
To convict Comey under Section 871, prosecutors must prove beyond a reasonable doubt that he “knowingly and willfully” threatened violence against the president. That threshold goes beyond the kind of subjective intent that the Supreme Court has said the First Amendment requires to treat an allegedly threatening statement as a crime.
In the 2023 case Counterman v. Colorado, the Court held that “a mental state of recklessness is sufficient,” meaning the government “must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” The standard under Section 871 is stricter: it requires proving that the defendant not only “consciously disregarded a substantial risk” that his statement would be viewed as a threat of violence but that he intended for it to be understood as such.
In the 2004 case United States v. Fuller, for instance, the U.S. Court of Appeals for the Seventh Circuit ruled that a defendant can be convicted of violating Section 871 even if he does not intend to carry out the threat. But the court stated that the government must “establish that the communicator knowingly and willfully made a threat,” meaning that the individual “intended it to be received as a serious threat, regardless of whether he intended to carry it out.”
The other count in the Comey indictment rests on 18 USC 875, which makes it a felony to transmit an interstate communication that contains “any threat to injure the person of another.” Unlike Section 871, that provision does not specify that the offender must act with a “knowingly and willfully” mentality. Yet under Counterman, prosecutors would still need to show that Comey “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
On its own, the Instagram post hardly meets the elements of either offense, as even Comey’s critics concede. In a CNN interview with Jake Tapper on Sunday, Sen. Thom Tillis (R–N.C.) described Comey as “a political hack” and the “biggest disappointment of my Senate career.” Despite his low regard for Comey, Tillis believes the case against him resembles “a vindictive prosecution” because “86 47” cannot plausibly be considered a death threat. “I can’t find any evidence where ’86’ is used as a call for violence,” he said. “It better be more than just the picture. There have to be facts and circumstances beyond that to convince me.”
There is “more than just the picture,” Blanche asserted. “I am not permitted to go into the specifics of what the grand jury heard or found,” he told Meet the Press. “But rest assured that it’s not just the Instagram post that leads someone to be indicted.”
The slogan “86 47” is “posted constantly,” Blanche acknowledged. “That phrase is used continuously. There are always men and women who choose to make threatening statements against President Trump. Not every one of those statements results in indictments, of course. There are facts, there are circumstances, there are investigations that have to take place.”
Blanche contends that all uses of “that phrase” qualify as “threatening statements against President Trump,” implying that anyone who wears an “86 47” T-shirt or displays an “86 47” bumper sticker could potentially be charged under Section 871. He says that “investigations” are necessary to determine whether a given instance warrants that charge. Yet the FBI does not and cannot launch an investigation every time someone uses “that phrase,” which raises questions about why Comey was singled out.
Given President Donald Trump’s well-documented aversion to Comey and his public demand that the Justice Department uncover a crime to pin on him, the answer seems obvious to some observers. Blanche insisted that Trump “wants justice,” not vengeance. But that motive does not explain why the government launched the 11-month probe Blanche described, which began with nothing more than an Instagram post featuring a slogan that is “used constantly.”
Setting that aside, Blanche said the inquiry uncovered “witnesses,” “documents,” and “materials” that will be used to “prove intent.” Yet it is hard to envision how such evidence could demonstrate that a “reasonable recipient” would interpret the seashell photo as a death threat, or that Comey either intended for it to be understood as such or purposely ignored the supposedly “substantial” risk that it would be seen as such.
The central issue first hinges on how the phrase “86 47” is reasonably interpreted. Is it reasonable to suppose that Republicans who wore “86 46” T-shirts or displayed “86 46” stickers during the Biden era were signaling an intent to kill the president? If not, it is not reasonable to read “86 47” in that way. No evidence gathered by the FBI or federal prosecutors will contradict that point. Yet that is precisely what the government would need to prove to treat Comey’s Instagram post as a “true threat.”
Apart from that formidable hurdle, what kind of evidence could exist that would illuminate Comey’s state of mind when he posted the seashell photo? Perhaps Comey confessed to someone—contrary to his public statement after deleting the image—that he always knew “some folks associate those numbers with violence.” Perhaps there are “documents” suggesting that Comey “knowingly and willfully” threatened the president in hopes of driving controversy that would boost his book sales. But that is unlikely.
During a press briefing on the indictment day, Blanche framed Comey’s case as typical of the charges the Justice Department frequently pursues against people who threaten public officials. “Over the past year, this department has charged dozens of cases involving threats against all sorts of individuals,” he stated. “We take these seriously, every single one of them.”
That claim is open to challenge if one believes that people who post, wear, or display the message “86 47” are automatically making “threatening statements against President Trump.” As Blanche concedes, most such individuals are not investigated, much less charged. And when individuals are charged under Section 871 or Section 875(c), the cases usually look quite different from this one.
To bolster his assertion that the Comey indictment represents business as usual at the Justice Department, Blanche cited a recent Northern District of Florida case involving a Tallahassee man, Diego M. Villavicencio, who pleaded guilty to two counts of sending interstate threats. The materials included X posts stating that Federal Reserve Chair Jerome Powell “will be shot and killed September 23” and that “Jerome is next.” Villavicencio also threatened Rep. Eric Swalwell (D–Calif.) in an X post, saying, “I’ll kill you and your family and you won’t do anything about it. Corruption listens to bullets.” He followed up with a direct message to Swalwell saying, “You are going to be shot and killed on September 24.” In a 4chan post, Villavicencio announced his plan to drive by Mar-a-Lago and “take a couple of shots at trump and some of the other corrupt plutocrats.”
Blanche also referred to a case “where the defendant pled guilty recently to threatening former President Biden.” He may have meant Troy Kelly, a Crown Point, New York, resident who last August “admitted that in May 2024 he posted a threat to kill President Biden on a social media website and that he intended it to be understood as a threat.” Kelly had replied to one of Biden’s posts by warning that he was “gonna put a bullet in your head if I ever catch you.”
In another recent instance, a Pennsylvania man, Shawn Monper, was charged last year with violating Section 875(c) by making threats on YouTube. “When are we going to stand up and kill these people?” he asked in one video. “That’s why Trump needs to die,” he stated in another. “I have bought several guns and [have] been stocking up on ammo since Trump got in office,” he reported, later declaring that “I’m gonna assassinate him myself.”
According to an indictment filed three months earlier in the Northern District of Ohio, Shannon Mathre was similarly clear about his intentions when he threatened Vice President J.D. Vance. “I am going to find out where he is going to be and use my M14 automatic gun and kill him,” Mathre allegedly said, resulting in a charge under Section 871, which covers threats against the vice president as well as the president.
Comey, by contrast, posted a photo of seashells “arranged in a pattern making out ’86 47′”—a phrase Blanche concedes is routinely used by Trump critics who never face federal charges. “In the typical case,” former federal prosecutor Alexis Loeb told The Hill, you “wouldn’t see threats that are readily open to nonviolent interpretations.”
One of these cases clearly does not resemble the others. Yet Blanche maintains that Comey’s Instagram post is legally indistinguishable from the explicit threats made by defendants like Villavicencio and Kelly.
Although the Comey indictment is “unique” and “stands out because of the defendant’s name,” Blanche told reporters last week, “his alleged conduct is the same kind of conduct that we will never tolerate and that we will always investigate and regularly prosecute.” In truth, the case against Comey “stands out” not merely due to the notoriety of the defendant, but also because his claimed death threat amounted to political speech protected by the First Amendment.
