When James Comey appears in federal court in North Carolina on Monday, it’ll mostly be about housekeeping. The parties will set schedules for discovery and motions, and maybe a trial date in late 2026 or early 2027. But don’t bother marking your calendar. This preposterous prosecution will collapse before it ever reaches a jury.
Let’s stipulate up front: Comey is a legendary blowhard, an inveterate fibber, and a pretentious prig whose guiding principle is that he alone has access to some mystical code of morality that conveniently justifies his outrageous conduct over the past decade. The former FBI Director’s arrogant defiance of core DOJ policy likely swung the 2016 election from Hillary Clinton to Donald Trump, and earned excoriation from the DOJ’s nonpartisan Inspector General and a bipartisan procession of former AGs. Comey then launched a sneak attack on the incoming Trump administration and later chortled publicly about how he broke ordinary FBI protocol in the process. Comey leaked to paint himself as a hero, to undermine Clinton (in 2016), and to undermine Trump (in 2017). Afterwards, he claimed that even though he arranged for sensitive FBI information to be released through a personal friend to the media, it somehow wasn’t a leak. Nobody likes the guy, and everyone’s got their reasons.
But this indictment has nothing to do with any of that. It’s about seashells, arranged on a North Carolina beach to depict the numbers “86 47.” Comey snapped a photo of this fortuitous natural occurrence in May 2025 and posted it on Instagram with the caption, “Cool shell formation on my beach walk.” (Funny how this guy constantly stumbles on poignant anti-Trump symbolism while wandering through nature.) After he circulated the image, the Secret Service requested an interview, which Comey granted. Comey then took down the image and posted, “I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.”
Nearly a year later, the Justice Department indicted Comey for “willfully and knowingly” making “a threat to take the life of, and to inflict bodily harm upon, the President,” and for transmitting that threat through interstate commerce (the internet). But not every indictment makes it to trial. And Comey has three compelling arguments for pre-trial dismissal — all of them likely winners, any one sufficient to end the case.
First and most fundamentally, “86 47” is nowhere near clear enough to constitute a criminal threat. “47” plainly refers to Trump, the 47th president. But “86” is open to wide and wildly varying interpretations. Yes, “86” has occasionally been used in pop culture to refer to murder or death. But the far more common usage is innocuous, derived from the restaurant industry to mean that a menu item has run out, or that a customer should be cut off. The major English dictionaries concur that “86” refers to getting rid of or running out of something, not murder or death.
Trump and other armchair mob experts have scrambled to claim that “‘86’ is actually a mob term for ‘kill him.’” As a former federal prosecutor and co-chief of the Southern District of New York’s organized crime unit, allow me to testify: No, it’s not. I spent years talking directly with gangsters, and listening to them talk to one another over wiretaps or bugs. Yet I never once heard any real mobster use “86” to refer to a murder (or anything else for that matter).
The fallback position seems to be that mobsters use the term “86” to refer to murder in the movies. What movies? Nobody uses the phrase in any Godfather installment, or Goodfellas or Donnie Brasco or The Departed or The Sopranos. There’s one arguable, opaque reference in the 1995 movie Casino. The fact that defenders of this indictment have to dig back thirty-plus years for a single pan-scraping of support demonstrates the case’s fundamental weakness. And even if there were more examples, it’s not nearly enough for prosecutors to show that one of several potential interpretations of “86” could refer to murder. The term is ambiguous at best, and ambiguity doesn’t get a prosecutor anywhere near proof beyond a reasonable doubt.
Trump himself doesn’t even seem to believe firmly that Comey’s post is an actual threat. When asked last week by CNN’s Kaitlan Collins whether he really thought his life was in danger, Trump responded, “Probably, I don’t know,” before he eventually stumbled his way to “yeah.” Either of those first two phrases out of Trump’s mouth – “probably” and “I don’t know” – would tank the prosecution’s case. If the jury doesn’t know whether Comey’s statement was a criminal threat, or even concludes that it probably was – that’s reasonable doubt, and an acquittal.
All told, the district court judge, Louise Flanagan (a 2003 appointee of George W. Bush) can and should dismiss the Comey indictment based on the First Amendment. Consider for comparison this statement by Vietnam War protester Robert Watts in 1968: “I am not going [to Vietnam]. 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 found that even that fairly explicit statement wasn’t enough to support a threats prosecution. First Amendment-protected political speech, the Court ruled, “is often vituperative, abusive, and inexact” – and Watts’s statement was “political hyperbole,” not a “true threat,” and not criminal. Comey’s post, ill-advised as it was, was far less specific and less threatening than Watts’s statement, and falls comfortably within the First Amendment’s protections.
Separately, Comey has a valid motion to dismiss based on vindictive prosecution. If a defendant can show that his prosecution is payback from the government for his prior exercise of a legal or constitutional right, then a judge can throw out the charge before trial.
Consider the history. Trump and Comey are longtime public antagonists. Over the years, they’ve made hundreds of public statements bashing one another. Lest there be any doubt about his intentions, in September 2025, Trump posted on social media that “Pam” (then-AG Pam Bondi) must indict “Comey” (and others) and that “JUSTICE MUST BE SERVED, NOW!!!” Bondi eventually did just that – the first Comey indictment, relating to alleged leaking and perjury – and promptly lost that case in November 2025 when a judge ruled that the U.S. Attorney had been improperly appointed. The new indictment, Comey will argue, is a continuation of the long-running personal beef between him and the President, and governmental retribution after Comey beat the Justice Department’s first case.
Finally, Comey can argue selective prosecution – meaning he has been singled out for criminal charges, among others who have engaged in similar conduct. Indeed, high-profile politicians and commentators have recently used the phrase “86” without being prosecuted, including right-wing influencer Jack Posobiec, who tweeted “86 46” in 2022 regarding then-President Joe Biden. Last week, Acting Attorney General Todd Blanche claimed that any comparison between Posobiec’s statement and and Comey’s seashell post is “just completely not true” and that the issues are “different.” In fact, the two statements are exactly the same. Prosecutions don’t get more selective than that.
If the DOJ’s goal is merely to indict Comey again, to generate fodder for Blanche to offer as audition material to Trump, and to cause Comey the indignity and expense of yet another criminal defense, then they’ve already succeeded. But if the goal is to bring a valid and worthwhile criminal case, Trump and his Justice Department will fail miserably, yet again.
