The Trump Justice Department is prosecuting James Comey for posting a photograph of seashells. The seashells were arranged to read “86 47.” The Justice Department has charged this as a threat against the President of the United States.
The government’s strongest argument is not about the seashells. It is about context. The prosecution can argue that a former FBI director — publicly fired by the president he is charged with threatening, publicly feuding with him, and one of his most prominent critics — posting a photograph arranged to read “86 47,” a phrase that in common usage means to kill, while the president is the obvious target, is not generic protest sloganeering but a targeted message whose context transforms the meaning. The government could argue that a reasonable observer, knowing the relationship between these two men and the political environment in which the photo was posted, would see something more than political opposition in a message that reads “get rid of” directed at a sitting president. That is the strongest version of the prosecution’s case.
The former Director of the Federal Bureau of Investigation fired in 2017 by the man he is charged with threatening — the same man who publicly demanded the prosecution on social media months before any indictment was sought — has now asked a federal judge to dismiss the case. His argument is straightforward: the photo was political speech. The First Amendment protects it. The government cannot meet the “true threat” standard the Supreme Court has demanded since Brandenburg v. Ohio, 395 U.S. 444 (1969), and Virginia v. Black, 538 U.S. 343 (2003), with a picture of shells on a beach.
The Justice Department should not be in this courthouse.
The motion filed Monday in the Eastern District of Virginia makes the point with restraint the indictment does not deserve. Comey’s lawyers wrote that “the government now singles out Mr. Comey to prosecute one of the President’s most prominent critics for publishing another person’s statement of political opposition over a social media photo of seashells arranged on a beach.” The “86 47” formulation — colloquial shorthand for “eject” or “get rid of” — has appeared on thousands of items sold commercially online. It is displayed at protests nationwide. The slogan’s commercial ubiquity is itself the defense: a phrase available on coffee mugs and bumper stickers cannot, as a matter of doctrine, be a true threat against the subject of its political opposition. The Black plurality made this explicit in holding that constitutionally protected speech “does not even constitute a threat” where the context shows political rather than violent meaning.
That the indictment proceeded anyway tells you what the prosecution actually is.
This case began with a social-media post by Comey on Instagram — shells, a beach, a number, no caption explaining intent to harm. The post drew immediate attention from the President, who called for prosecution in real time. A previous indictment was dismissed on procedural defects; a replacement followed weeks later. The lead prosecutor assigned to the case departed without explanation in late May. The pattern is now familiar: a Justice Department that indicts on the President’s timeline, loses personnel who cannot defend the charging decision in court, and refiles to keep the case alive while the underlying constitutional objection — that the speech is protected — goes unaddressed in any superseding instrument.
The pattern, taken together, is not law enforcement. It is retaliation through prosecution.
The doctrinal moves available to the government are narrow. Brandenburg requires imminence, lawlessness, and intent. Black requires context showing the speech was a true threat, not political hyperbole. Counterman v. Colorado, 600 U.S. 66 (2023), reaffirmed that the true-threat standard turns on whether a reasonable observer would understand the statement as a serious expression of intent to inflict harm — a standard plainly not met by a photograph of seashells that anyone can purchase as a beach tchotchke. The “86 47” formulation has been a piece of political Americana since long before Comey touched it. The government cannot recode political sloganeering as assassination threat by selecting the recipient.
The Justice Department knows this. Any prosecutor who has tried a true-threat case knows this. The defense motion recites the controlling doctrine verbatim because the doctrine is unambiguous; what is being prosecuted here is not the speech, but the speaker.
That is the case the public should be reading. A sitting Justice Department, on the demand of the man who fired the defendant, has indicted a political critic for a photograph that draws its meaning from the same protest vocabulary available at any rally, on any t-shirt, in any campaign commercial opposing any incumbent president. The Bivens contraction, the Hernandez v. Mesa standing barrier, the political-question dismissals — those doctrinal moves protect executive officers from civil liability for killings abroad and at sea. They do not, and cannot, authorize the use of the federal criminal machinery to punish a political opponent for a beach photo.
If the court lets this case go to trial, the courthouse becomes the next instrument in the architecture the Court has spent two decades building for the executive’s discretionary use. If the court dismisses, the Justice Department must answer for what it tried.
The seashells did not threaten anyone. The prosecution does.