“I don’t think I’ve ever witnessed a sitting or former FBI chief call for the president’s death,” Senator Ted Cruz (R–Texas) remarked during a recent appearance on Real Time With Bill Maher. As you might expect, his comment referred to the image at the heart of federal charges against former FBI Director James Comey, which depicted seashells laid in the sand to spell out the slogan “86 47″—a widely recognized expression of opposition to President Donald Trump. When Comey shared that photo on Instagram in May 2025, prosecutors contended, as part of a broader Trump vendetta against a well-known adversary, that it publicly threatened to assassinate the president.
“I don’t know if that case will go anywhere,” Cruz said before endorsing Trump’s frankly ridiculous interpretation of the seashells. “To ’86’ someone isn’t to remove them from your life,” Cruz told Maher. “It’s to kill them.” Maher challenged that interpretation vigorously, which makes sense because, while the number can be read as a reference to murder, that is far from its sole or most common meaning. Nor is this the only hurdle the government faces in proving Comey guilty of the two felonies charged in the indictment.
Comey’s trial is slated to start in February. For a conviction, the government must show, at a minimum, that he “consciously disregarded a substantial risk that his communications would be perceived as inciting violence.” Under the Supreme Court’s 2023 decision in Counterman v. Colorado, that constitutes the constitutional standard for convicting someone of making a “true threat.” And beyond that, at least one charge requires evidence that he wanted people to interpret the seashell image as a threat to assassinate Trump.
That’s a demanding standard, as Cruz implicitly acknowledged when he admitted uncertainty about whether the case would progress. Yet the case could falter even without delving into Comey’s mental state because, contrary to Cruz’s and the indictment’s assertions, a reasonable recipient acquainted with the circumstances would not interpret Comey’s post as “a serious expression of intent to harm the President of the United States.”
The government’s position to the contrary runs counter to ordinary usage. “The ordinary meaning of ’86’ does not imply violence,” Comey’s lawyers argue in a motion to dismiss. Merriam-Webster explains that eighty-six is slang for “to throw out,” “to get rid of,” or to “refuse service to.” The term originated in 1930s soda‑fountain slang meaning something had sold out; by the 1950s it had evolved into a verb, initially meaning to deny service, later broadening to mean to discard or exclude, and eventually to mean to shut out or reject.
Most pertinent here, Comey’s lawyers observe, pairing “86” with a shorthand for a president’s term is a common, widely used political rhetorical device,” noting that merchandise bearing similar phrases is ubiquitous, and prominent commentators and public figures have regularly employed such phrases.”
Items like T‑shirts and stickers bearing “86 44,” “86 45,” “86 46,” and “86 47″—each alluding to Barack Obama, Trump in his first term, Joe Biden, and Trump in his current term—are readily available from major online retailers like Amazon, and have been bought thousands of times,” the motion states. “In the months leading up to Mr. Comey’s post, ’86 47′ flags, signs, and apparel were routinely seen at protests across the country.”
In the face of that context, Cruz offered his own cinema-based recollections. Drawing on “every mob film I’ve watched,” he told Maher, it’s clear to him that eighty-six means kill.
Maher pushed back. “I’ve watched plenty of mob movies, too,” he replied. “They don’t say ‘eighty-six.’ They say ‘whack’ a guy. They say ‘he’s gone; he sleeps with the fishes.’ They don’t say, ‘Yeah, we eighty-sixed him.'”
Who is correct? “A search of scripts from the American Film Institute’s top 10 gangster films shows no instance of the phrase being used in reference to murder,” ABC News reported in April. And for what it’s worth, ChatGPT says, “I haven’t found a single example from a recognizable mob movie where ’86’ unambiguously means kill.”
Federal investigators expended substantial effort attempting to locate evidence that Comey believed or should have believed eighty-six signaled kill. They deployed AI queries, sifted investigative records, reviewed transcripts from organized crime cases, and interviewed former FBI agents. Notably, that search continued even after Comey’s indictment, at which point the Justice Department’s manual indicates prosecutors should already have gathered “admissible evidence” that would more likely than not suffice to obtain a conviction. Five days after the indictment, Attorney General Todd Blanche asserted that such evidence existed—a claim contradicted by the prosecutors’ ongoing, increasingly desperate attempt to shore up their interpretation of Comey’s message.
The strongest evidence prosecutors could unearth came from a post-indictment phone interview with Salvatore “Sammy the Bull” Gravano, the cooperating witness in United States v. John Gambino, who stated his belief that Comey knew what the term ’86’ signified “in relation to killing someone.” Gravano noted that such terminology wouldn’t normally surface in legal or investigative records because “members of organized crime prefer not to use terms like ’86’ in the presence of law enforcement.”
Apart from that, prosecutors found little. One former FBI agent who had worked on organized crime cases in New York and who had been assigned to the squad that investigated the Gambino family recalled being familiar with the term ’86’ and having used it or heard others use it. He said he never understood it to mean killing, and did not recall any instances where organized crime subjects or informants used ’86’ to signify murder.
A second retired agent, who also had extensive experience with organized crime cases in New York, couldn’t recall any instance where ’86’ had been used in that context to mean kill. He understood the term to refer to discarding or getting rid of things.
Supporting those testimonies, Comey’s lawyers submitted a declaration from John Gleeson, a former federal judge and longtime assistant U.S. attorney in the Eastern District of New York, who has decades of exposure to organized crime cases. Gleeson and Comey had previously been colleagues in New York City, albeit in different districts, and he emphasizes that they were never friends.
“Mr. Comey and I are not friends and never were,” Gleeson writes. “Even though we used the same evidence—recorded conversations and cooperating witnesses described below—we competed and disagreed about prosecutorial strategies, including a major disagreement in a multi-defendant murder case that was resolved at the highest levels of the Justice Department. To my knowledge, I have not been in Mr. Comey’s presence or communicated with him since 1993.”
Gleeson tackles Gravano’s point that criminal figures avoid their usual slang in any setting that might be recorded. “The recorded conversations relevant to the language used by mobsters to refer to murder are bug recordings, not wiretaps,” Gleeson explains. “The reason: gangsters assume their calls are recorded, so they tend to speak cautiously and refrain from discussing serious crime on a phone call. Bug recordings, by contrast, come from covertly placed microphones in places where targets feel free to speak openly.”
Here is Gleeson’s bottom line: “The claim that ’86’ is mafia jargon for ‘kill’ is absurd. If this weren’t tied to a liberty-depriving pursuit, it would be laughable. I have never encountered a single recorded conversation where a mob member uses ’86’ in any way to refer to killing. Nor have I come across such a reference in my thousands of hours of interviews with cooperating witnesses in mafia probes. In short, in my expert view, there is literally no support for the central allegation on which the case rests.”
In responding to Comey’s motion, federal prosecutors offer little effort to counter his argument that their interpretation of eighty-six is misguided. Instead, they contend that whether Comey’s message constitutes a true threat is a question best left to a jury after trial. “Whether a viewer could objectively interpret Comey’s message as a threat is inherently a fact-bound issue,” they write. “A jury must decide the true-threat question.”
That line of argument could prevail, write Anna Bower, Eric Columbus, and Molly Roberts in a recent Lawfare essay. “As comical as the prosecution’s case may be, it could still reach trial,” they note, stressing that the meaning of a true threat hinges on context and thus on fact-finding. “If the government’s case is as weak as it appears,” they claim, “Comey will have further chances to defeat it.” He could, for instance, move for a judgment of acquittal at the close of the government’s case, arguing that no rational juror could find, based on the evidence presented, that his post constituted a true threat to the President.
Bower and colleagues make their position clear: “The Comey prosecution seems—quite frankly—unmerited. It is hard to imagine it resulting in a conviction. Whether Comey can derail the process before a jury is seated, however, remains far from certain.”
Of course, a trial would raise the price Comey already pays for becoming a prominent target in the president’s political adversaries. “There’s an old legal adage: the process is the punishment,” Bower and colleagues write. “Trump would likely take pleasure in seeing Comey behind bars. But forcing Comey to endure a trial while a prosecutor presents a felony case to a jury—an arguably weak case—could be enough to brighten the president’s day.”
That reality makes Cruz’s stance on the matter even more troubling. To his credit, Cruz has not hesitated to condemn other attempts by the Trump administration to sanction individuals for constitutionally protected speech—especially the way the Federal Communications Commission has been used to silence Trump critics like Jimmy Kimmel. Yet Maher gave Cruz an opening to discuss the First Amendment implications of trying to jail Comey over an Instagram image, and Cruz answered by criticizing Comey’s “astonishing” and “disgusting” linguistic theatrics.
Maher opened the discussion of Comey’s case by noting that the senator is the author of a book titled Justice Corrupted: How the Left Weaponized Our Legal System. Instead of showing that his opposition to such abuses and his commitment to free expression are principled, Cruz echoed Trump’s questionable understanding of eighty-six, citing unnamed and seemingly nonexistent films to support his point.
Whether Cruz’s outrage about Comey’s Instagram post is heartfelt or a bid to curry favor with MAGA supporters is difficult to determine. Either way, he has reinforced the misguided notion that freedom of speech is worth defending only when the speaker is agreeable and the message aligns with one’s own views.
