You can't make this stuff up. Former FBI Director James Comey is facing federal charges because he posted a picture of seashells on Instagram.
The Justice Department claims that an arrangement of shells spelling out "86 47" is a full-blown criminal threat against Donald Trump, the 47th president. To the current DOJ under Acting Attorney General Todd Blanche, "86" means to eject or eliminate, and "47" refers to Trump.
If you listen to the talking heads on cable news, they'll tell you this is a complex, unprecedented constitutional showdown. They'll say it sits in a murky legal grey zone between protected political expression and federal crimes.
Honestly? It's not that complicated. The government's case is a massive reach that stretches federal threat statutes far past their breaking points.
The High Bar for True Threats
The government indicted Comey on two counts: violating 18 U.S.C. § 871 for threatening the president, and 18 U.S.C. § 875 for transmitting a threat in interstate commerce. If he's convicted, he could face up to a decade in prison.
But a conviction requires the prosecution to prove that Comey issued a "true threat." That isn't just a casual standard. The Supreme Court has repeatedly guarded political speech, even when that speech is offensive, vitriolic, or deeply bizarre.
Look at the landmark 1969 case Watts v. United States. A 18-year-old war opponent told a crowd at a rally, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." The Supreme Court tossed his conviction. They ruled that political hyperbole isn't a true threat. Comey’s beach photography doesn’t even approach that level of direct rhetoric.
To win a conviction under 18 U.S.C. § 871, prosecutors must show the defendant knowingly and willfully made a threat to take the life of or inflict bodily harm upon the president. Spell-checking a number into some North Carolina sand simply doesn't fit the bill.
The Counterman Standard Destroys the Case
Last year, the legal playground changed. The Supreme Court ruled in Counterman v. Colorado that in true-threat cases, the government must prove the speaker understood the statements could be interpreted as a threat. Specifically, the prosecution must establish a subjective mental state of recklessness.
Think about what that means for the Comey trial scheduled for October 21 in North Carolina.
Assistant US Attorney Timothy Severo, who recently stepped in to lead the prosecution, has to convince a jury that Comey consciously disregarded a substantial risk that his seashell post would be viewed as a literal threat of physical violence. Comey’s defense team will easily counter this. "86 47" is a common political meme on the left. It’s an expression of a desire to see a politician voted out, impeached, or politically neutralized. It's a wish for political retirement, not an assassination plot.
When you look at the law, the case begins to evaporate. Cryptic political satire, no matter how passive-aggressive or petty you find it, isn't a federal felony.
A Pattern of Selective Prosecution
This isn't the first time the DOJ tried to put Comey behind bars recently. Just months ago, a federal judge in Virginia tossed out a completely separate indictment against Comey for allegedly lying to Congress. Why? Because the political loyalist prosecutor appointed to the case was ruled wrongfully appointed.
The shell case looks like a desperate second swing at a top political target. Former federal prosecutors are already pointing out that these new charges are remarkably weak. The case looks less like a serious pursuit of justice and more like a performative exercise to appease a vengeful administration.
When a prosecution relies entirely on a jury decoding a vague mob-style metaphor from an Instagram photo of beach debris, you don't have a robust legal strategy. You have a political stunt.
What Happens Next
Don't expect this case to ever reach a jury. Comey’s legal team will undoubtedly file a motion to dismiss based on the First Amendment long before October.
If you want to track how this plays out, watch the pretrial motions in the Eastern District of North Carolina. Keep an eye on how the judge handles the Counterman standard during preliminary hearings. If the judge demands strict adherence to proving Comey’s subjective intent to threaten harm, the state's case collapses on arrival.
The law protects bad poetry, weird art, and bitter political commentary. The DOJ is about to find out that it also protects beachside math.
