Seashells and slang weak basis for case against Comey, legal experts say
The Justice Department’s Tuesday indictment of former FBI Director James Comey—based upon his posting a photo of seashells on Instagram in May 2025—faces daunting legal hurdles, including proving the meaning of ambiguous slang, legal experts say.
The charges stem from an incident nearly a year ago when Comey, vacationing on the North Carolina coast, posted a photograph on social media showing seashells on the beach arranged to say “86 47.” President Donald Trump’s administration says it is pursuing Comey for making a threat to kill the president.
“It’s going to very difficult to prove beyond a reasonable doubt that conveying the term ‘86’ was an intentional threat,” says Ray Brescia, a professor, associate dean for research and intellectual life at Albany Law School and the author of Lawyer Nation: The Past, Present and Future of the American Legal Profession. “The meaning of the term itself is deeply contested.”
Comey appeared today in a federal courthouse in Alexandria for the first hearing in the case. The charges were brought by a grand jury convened in the Eastern District of North Carolina, located in New Bern, North Carolina. The grand jury charged Comey with making a threat against the president and transmitting a threat across state lines.
Len Niehoff is a professor at the University of Michigan Law School, where he teaches First Amendment law.
Comey’s seashells post is “classic political hyperbole, ” Niehoff says, and therefore protected speech under the First Amendment.
He points out that First Amendment jurisprudence sets a “high standard” for speech to be considered a true threat that falls outside the scope of protection.
“This speech, which is whimsically spelled out in seashells on a beach, does not even approach that standard,” Niehoff says. “This is the stuff of political T-shirts and bumper stickers, not of criminal threats.”
Jeffrey Bellin is a law professor specializing in criminal procedure and evidence at Vanderbilt University Law School. He says that the indictment appears to be part of an “ongoing effort” to use DOJ funds to target Trump’s critics.
“From the evidence presented so far,” Bellin says, “it looks like a weak case with major legal obstacles that the department will likely lose in court, all while diverting the DOJ’s increasingly strained resources from more important criminal cases and further damaging its institutional reputation with the courts and the public.”
Mike Davis is the founder and president of the Article III Project, a conservative legal advocacy group. He says that anyone with Comey’s law enforcement background “knows precisely what ‘86’ means.”
“This is a great day for the rule of law because no one is above the law, including a former FBI director,” Davis says.
Comey said in a video posted online that he will fight the charges.
“I’m still innocent, I’m still not afraid, and I still believe in the independent federal judiciary, so let’s go,” he said, urging Americans to “keep the faith.”
Patrick Fitzgerald, the former U.S. attorney representing Comey, says that his client “vigorously denies the charges contained in the indictment.”
“We will contest these charges in the courtroom and look forward to vindicating Mr. Comey and the First Amendment,” Fitzgerald says.
The Justice Department did not immediately return a request for comment.
‘86 47’
“Eighty-six” is a slang term used to mean “to throw out,” “to get rid of,” or “to refuse service to,” according to the Merriam-Webster’s dictionary website. The term comes from 1930s soda-counter slang indicating that an item is sold out, according to the website.
Members of the Trump administration, along with his family, said that the meaning of “86” is to kill, and that the seashell message amounted to a threat to assassinate the president.
Comey has said he did not know what the numbers on the image meant. However, when he first learned of the brouhaha over his post, he took it down.
FBI Director Kash Patel said at a press conference held Tuesday that Comey “knew full well the attention and consequences of making such a post.”
“James Comey disgracefully encouraged a threat on President Trump’s life and posted it on Instagram for the world to see,” Patel said.
The indictment also states that the seashell arrangement was one that 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.”
Brescia emphasizes that the term “86” has many possible meanings, adding that when he used to work in a restaurant, they would “routinely” use the term “86” in reference to food that had gone bad.
“That meant we had to throw the food out and not serve it,” Brescia says.
Niehoff emphasizes that the Supreme Court recognizes that the First Amendment protects “rhetorical hyperbole and loose, figurative language,” which he says “commonly includes some ambiguity.”
“Speech needs breathing room,” Niehoff says. “And First Amendment jurisprudence does not allow the state to assign to speech the most sinister possible meaning it might convey under the most paranoiac reading of its content.”
Niehoff also says that Comey’s decision to take down the message is common when people decide that speech is not worth the “aggravation” of blowback.
“The deletion is concerning, but not because someone is hiding evidence or admitting wrongdoing,” Niehoff says. “The deletion is concerning because it shows how easily speech can be chilled.”
‘Impulse to harass’
Comey was named FBI director by President Barack Obama.
As FBI director, Comey ignited passion on both the political left and the right for his handling of the investigation into presidential candidate Hillary Clinton in 2016. The next year, Trump fired him, and the two have been engaged in a dramatic feud ever since.
The Justice Department previously indicted Comey in September in the Eastern District of Virginia on one count alleging that he lied to Congress and a second count alleging he obstructed a congressional investigation. The Virginia grand jury rejected a third count sought by government prosecutors involving another alleged false statement.
Comey compared Trump to a mob boss in his 2018 memoir, A Higher Loyalty. After Comey’s September indictment, Trump called him a “dirty cop” on Truth Social.
That first case against Comey was dismissed.
Niehoff says that the second indictment could be viewed as “ridiculous if it were not also dangerous.”
“This administration’s antipathy towards Comey is well known and well documented,” he says. “It is hard to imagine what would motivate such an indictment other than politics, personal grievances and an impulse to harass.”
Updated Aoril 29 at 3:20 PM, to add a quote from Mike Davis.
Write a letter to the editor, share a story tip or update, or report an error.
