Such allegations are difficult for most defendants to substantiate. Yet most defendants have not drawn the president’s public ire into the spotlight.
The U.S. Department of Justice (DOJ) this week charged former FBI Director James Comey with two felony counts alleging that he threatened the president. The allegations emanate from a May 2025 Instagram post in which Comey shared a seashell arrangement spelling “86 47″—86 denoting a slur for removing someone or something, and 47 a nod to Donald Trump, the 47th president of the United States.
The case is weak on the merits. It seems engineered to settle a personal score—Comey has long been a target of Trump’s displeasure—and the charges are so flawed that the former FBI director could have a particularly robust vindication defense on First Amendment or vindictive-prosecution grounds.
The indictment contends that Comey violated two federal statutes: one prohibiting threats against the president and another criminalizing transmission of such a threat “in interstate or foreign commerce.” According to the government, Comey “knowingly and willfully made a threat to take the life of, and to inflict bodily harm upon, the President of the United States,” by posting the seashell image, “which a reasonable recipient familiar with the circumstances would interpret as a serious expression of an intent to harm the President of the United States.”
That interpretation is, to put it mildly, contestable. The term 86, per Merriam-Webster, broadly means to eject, dismiss, or remove (someone), with roots in 1930s soda-counter culture. While the dictionary concedes the term “can” imply violence, it notes that the definition does not incorporate that nuance due to its relative novelty and limited usage. This perhaps helps explain, as Reason contributor Billy Binion observed last year, why several Trump allies—from former Rep. Matt Gaetz (R–Fla.) to MAGA influencer Jack Posobiec—have used the term to characterize political opponents without provoking comparable outrage, much less investigation or prosecution.
Comey deleted the post. “I didn’t realize some folks associate those numbers with violence,” he apologized, and he agreed to sit for an interview with the Secret Service. Later reports indicated that after Comey posted the image from a North Carolina beach vacation with his wife, law enforcement monitored his movements as he returned home, effectively treating him as a possible threat. In announcing the indictment, FBI Director Kash Patel claimed the government had pursued the seashell inquiry “over the past 9, 10, 11 months.”
Prominent legal scholars are skeptical. UCLA School of Law professor Eugene Volokh argues that the prosecution is unlikely to survive constitutional scrutiny. The Supreme Court’s decision in Counterman v. Colorado (2023) holds that criminalizing a threatening statement requires proof that the speaker “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
Meeting that standard, at best, would be an uphill climb. “The notion that Comey’s seashell image conveyed a serious intent to harm the president is absurd,” contends the Foundation for Individual Rights and Expression. “The administration should abandon this transparent and unconstitutional attempt to punish a critic.”
Nevertheless, beyond the First Amendment stakes, Comey may also have a stronger-than-average vindication argument.
Historically, as far back as 1886, the Supreme Court recognized a right against selective prosecution when laws are applied selectively to particular groups or individuals. The Court later articulated a posture against vindictive prosecution, forbidding prosecutors from acting out of personal hostility. This is a high bar, but given the conduct surrounding Trump’s second term, Comey could have a credible pathway.
First, this case marked a second time within less than a year that the Trump administration took aim at Comey. In September 2025, prosecutors charged Comey in the Eastern District of Virginia with lying to Congress; the indictment came just as the statute of limitations was about to run out. More tellingly, it followed closely on a Truth Social post directed at then–Attorney General Pam Bondi—described by insiders as a private message—that accused Comey, as well as Senator Adam Schiff (D–Calif.) and New York Attorney General Letitia James, of inaction. “Nothing is being done,” Trump wrote, “They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!” Was this about justice, or was it about revenge? A federal judge later dismissed the case not for vindictive prosecution but because the prosecutor had been improperly appointed.
Under current Supreme Court precedent, a defendant must demonstrate the government’s motive to prevail on a vindictive-prosecution claim. Gaining that insight typically requires discovery, but to obtain discovery, a defendant often must first show enough evidence to justify it. “How are you supposed to win your motion if you’re not allowed to have the government answer questions or hand over documents?” notes Carissa Byrne Hessick, a professor at the University of North Carolina School of Law. “Quite literally, you’re told you must have the evidence before you can request the evidence.”
But this is not a routine case, particularly given that the president himself has used social media to demand action against his personal enemies, including Comey. (That post remains publicly accessible.)
Comey’s fate is not sealed; he may not automatically beat the indictment on these grounds alone. “He has a compelling case for discovery—that is, the opportunity to request questions and obtain documents from the DOJ,” Hessick explains. That is a separate question from whether he will win the motion or have the charges dismissed. Yet simply reaching the discovery stage would be “terribly embarrassing” for the administration, she adds, even if it does not definitively resolve the indictment.
