Federal Charges Against James Comey Over Instagram Photo Deemed Unconstitutional by Legal Experts

James Comey, a former federal prosecutor, deputy attorney general, and FBI director, has been charged with two federal felonies based on a 2025 Instagram photo. The indictment, filed by W. Ellis Boyle, U.S. attorney for the Eastern District of North Carolina, on April 28, alleges that a seashell formation in the sand—captioned 'cool shell formation on my beach walk'—constituted a threat to harm President Donald Trump.

The photograph displayed the message '86 47,' which prosecutors claim refers to Trump as the 47th president and '86' as a coded threat to kill. The charges include:

• 18 USC 871: Threatening to 'take the life of' or 'inflict bodily harm upon' the president.
• 18 USC 875(c): Interstate communications threatening to 'injure the person of another.'

Legal experts argue that interpreting '86' as 'kill' is a significant stretch. The slang term 'eighty-six' originated in the mid-20th century as a reference to banning unwanted bar customers, not as a threat. Additionally, Supreme Court precedents on 'true threats' require a reasonable interpretation of intent, which this claim may not meet.

This is the second attempt by the Trump administration to prosecute Comey. In a September 20 Truth Social post, Trump ordered then-Attorney General Pam Bondi to prosecute Comey, stating,

'We can't delay any longer. JUSTICE MUST BE SERVED, NOW!!!'

The first indictment, filed within five days of Trump’s post, accused Comey of lying to Congress. However, a federal judge dismissed that case two months later after finding the prosecutor had been illegally appointed as an acting U.S. attorney. The deadline for charges related to Comey’s September 2020 Senate testimony has also passed.

Unlike the dismissed case, the current charges stem from Comey’s post a year ago, placing them within the statute of limitations. However, the legal validity of the charges remains highly contested.