James Comey Indicted for Instagram Post Allegedly Threatening Trump: Legal Analysis of '86 47' Post

Former FBI Director James Brien Comey Jr. has been indicted for allegedly making a threat against the President of the United States in a now-deleted Instagram post. The indictment, filed in the Eastern District of North Carolina, accuses Comey of violating federal law by knowingly and willfully threatening the president’s life or bodily harm.

The post in question, dated May 15, 2025, featured an image of seashells arranged to spell "86 47". Prosecutors argue that the phrase, in context, would be reasonably interpreted as a serious expression of intent to harm the president. The indictment cites two federal statutes: 18 U.S.C. § 871(a) (threatening the president) and 18 U.S.C. § 875(c) (interstate threats).

Legal Analysis: Is "86 47" a Threat?

Comey has publicly disputed the prosecution’s interpretation of the post. In a statement, he argued that the phrase "86 47" is a barroom slang term with no violent connotation. He cited the Oxford English Dictionary (OED), which defines "eighty-six" (or "86") as:

• To eject or debar someone from premises;
• To reject or abandon; or
• To refuse to serve a customer.

Examples from the OED and historical usage support Comey’s interpretation:

"'Eighty-six' is the trade term for refusing to serve a patron any more liquor… If the patron begins trying out airplane spins on innocent neighbors, for example, he is through. He is 'eighty-sixed'." — Times Herald (Washington, D.C., 1942)

"'Eighty-sixed some square bankers from the temple'… eighty-sixed means evicted." — Observer (1959)

"You're 86'd"… This is a barroom phrase that means 'you're banned in here'." — New York Times (1968)

First Amendment and "True Threats"

Comey’s defense hinges on the legal definition of a "true threat", which must be reasonably understood as an expression of intent to commit violence. He cited the 2023 Supreme Court case Counterman v. Colorado, which clarified that the First Amendment exception for true threats applies only to statements that would be reasonably interpreted as such.

"Absent further context," Comey argued, "the term can't be reasonably seen as a threat of violence." He emphasized that without additional evidence of intent—such as a history of animosity or prior threats—the phrase lacks the necessary context to qualify as a criminal threat.

Potential Outcomes and Broader Implications

The case raises significant questions about the boundaries of free speech and the interpretation of ambiguous language in the digital age. Legal experts suggest that the prosecution’s success may depend on whether the government can prove that Comey’s post, in context, would be understood as a genuine threat by a reasonable recipient.

If convicted, Comey could face severe penalties under federal law, including imprisonment. However, his legal team has signaled their intent to challenge the indictment on First Amendment grounds, arguing that the prosecution is an overreach and that the post was merely a rhetorical or satirical statement.

The outcome of this case could set a precedent for how social media posts—particularly those using coded or slang language—are evaluated in the context of federal threat statutes.