DOJ's Evidence Against James Comey Fails to Turn '86 47' Into a Viable Death Threat Charge

Acting Attorney General Todd Blanche asserts that an 11-month federal investigation yielded "a body of evidence" justifying the indictment of former FBI Director James Comey on charges of publicly threatening to assassinate President Donald Trump. The indictment centers on a May 15 Instagram post featuring a photograph of seashells arranged to spell "86 47," a phrase commonly interpreted as opposition to the president.

Blanche, speaking on NBC’s Meet the Press last Sunday, claimed the evidence extends beyond the Instagram post but declined to detail its nature. He argued this additional evidence would establish the intent required for a conviction. Legal analysts, however, remain skeptical, particularly regarding the first count of the indictment, which accuses Comey of violating 18 USC § 871 by "knowingly and willfully" threatening the president’s life.

The indictment alleges Comey "publicly post[ed] a photograph on Instagram" depicting "seashells arranged in a pattern making out '86 47,'" which prosecutors claim a "reasonable recipient" would interpret as a serious intent to harm the president. This interpretation hinges on the Supreme Court’s distinction between ‘true threats’ and protected speech—a distinction that has shaped First Amendment jurisprudence.

The phrase "86 47" is widely recognized as slang for "reject" or "discard," with commercial availability on items like T-shirts and bumper stickers. Given its common usage and lack of contextual menace, legal scholars argue it strains credibility to construe it as a credible death threat. The prosecution’s burden is further complicated by the requirement to prove Comey ‘knowingly and willfully’ intended his post as a threat—a higher standard than recklessness.

In Counterman v. Colorado (2023), the Supreme Court ruled that recklessness may suffice for certain threat prosecutions, but 18 USC § 871 demands a stricter standard: prosecutors must prove the defendant not only disregarded the risk of being perceived as threatening but intended the communication to be understood as such. This distinction was underscored in United States v. Fuller (2004), where the 7th Circuit held that a conviction under § 871 requires proof of ‘knowing and willful’ intent, even if the defendant did not plan to act on the threat.