On Tuesday, the Trump administration indicted former FBI Director James Comey for posting on social media a photograph of seashells:
On or about May 15, 2025, in the Eastern District of North Carolina, the defendant, JAMES BRIEN COMEY JR, did knowingly and willfully make a threat to take the life of, and to inflict bodily harm upon, the President of the United States, in that he publicly posted a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out “86 47”, 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.
In violation of Title 18, United States Code, Section 871(a).
A second count claims this photo of seashells violated the interstate threats statute, 18 U.S.C. § 875(c).
Legal commentators across the political spectrum viewed the indictment as bogus, because the photograph did not contain a true threat, under Supreme Court rulings such as Watts v. United States. The indictment does not allege illegal incitement, which in any event is not present under the Supreme Court’s decision in Hess v. Indiana. A reasonable viewer of Comey’s post would not interpret it as a serious expression by Comey of an intent to kill President Trump.
“Bogus… If it’s possible… even more absurd than the previous indictment. That one failed to state a crime. This one fabricates a crime…. [a] farce…. What Comey did… does not come close to a threat to kill or harm the president” or a solicitation, notes Andy McCarthy of the conservative National Review.
Eugene Volokh, a center-right legal scholar, said: “I think this prosecution is unjustified, and will get thrown out.”
As Volokh, a longtime law professor, explained:
To “eighty-six” someone is, to quote the Oxford English Dictionary, “to eject or debar (a person) from premises; to reject or abandon; (in earliest use) to refuse to serve (a customer).” (In context, “47” means Trump, who is now the 47th president.) Here are the examples the OED gives:
1942 ‘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.) …
1959 ‘Eighty-sixed some square bankers from the temple’..eighty-sixed means evicted. Observer …
1963 I’ll have you eighty-sixed out of this bar. J. Rechy, City of Night.
1968 On the evening of July 22, Mr. Mailer was filming a dream sequence at the house of Alfonso Ossorio in East Hampton, when Mr. Smith came into the house. ‘He told me, “You’re 86’d”,’ Mr. Smith recalled yesterday. This is a barroom phrase that means ‘you’re banned in here’. New York Times.
1980 Most of the program was devoted to the lessons in campaign management that could be learned from Presidential races, real and fictional (A scene was shown from the movie ‘The Candidate’, in which the media adviser said to Robert Redford, ‘O.K., now, for starters, we got to cut your hair and eighty-six the sideburns’). New Yorker
Absent further context, the term can’t be reasonably seen as a threat of violence.
“Laughable… pernicious,” says the liberal law professor Rick Hasen.
This indictment signals “a Department of Justice fully untethered from constitutional restraints and evidentiary standards,” says Mike Fox of the libertarian Cato Institute.
