James Comey Indicted for Alleged Threat Against Trump: A Case of Vindictive Prosecution?

The U.S. Department of Justice (DOJ) this week indicted former FBI Director James Comey on two felony counts of threatening the president. The case stems from a May 2025 Instagram post, in which Comey shared a photo of seashells arranged to spell "86 47"—86 being a slang term for getting rid of someone or something, and 47 a reference to Donald Trump, the 47th president of the United States.

The case is meritless. It appears to be a vehicle for settling a personal grudge—Comey has been a target of Trump's ire for nearly a decade—and is so deficient that the former FBI director has an unusually strong argument for vindictive prosecution.

The indictment alleges Comey violated two federal statutes: one against threatening the president and the other against transmitting such a threat "in interstate or foreign commerce." Comey "did knowingly and willfully make a threat to take the life of, and to inflict bodily harm upon, the President of the United States," according to the federal government. He did so, it says, by posting the seashell photo, "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."

That is, to put it mildly, up for debate. The term 86, according to Merriam-Webster, broadly means "to eject, dismiss, or remove (someone)," originating from 1930s soda-counter culture. And while the dictionary acknowledges the term can imply violence, it says it does not include that connotation in its definition "due to its relative recency and sparseness of use."

Which perhaps explains, as Reason's Billy Binion noted last year, why several Trump allies—from former Rep. Matt Gaetz (R–Fla.) to MAGA influencer Jack Posobiec—have used the term about their political opponents without eliciting similar outrage, much less investigation or prosecution.

Comey deleted the post. "I didn't realize some folks associate those numbers with violence," he said in an apology, and he agreed to an interview with the Secret Service. It later emerged that after Comey posted the photo from the North Carolina beach where he and his wife were on vacation, law enforcement reportedly followed and surveilled him as he returned home, as if suspecting he might make good on the perceived threat.

In announcing the indictment, FBI Director Kash Patel said the government had worked on the seashell investigation "over the past 9, 10, 11 months."

"I think this prosecution is unjustified, and will get thrown out," writes UCLA School of Law professor Eugene Volokh, who notes the case is likely doomed on First Amendment grounds. The Supreme Court's ruling in Counterman v. Colorado (2023) established that to punish someone over a threatening statement, the government "must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence." It is difficult to argue this meets that bar.

The idea that Comey's picture of seashells conveyed a serious intent to harm the president is ridiculous,

adds the Foundation for Individual Rights and Expression (FIRE).