The '86 47' Prosecution: A Chilling Assault on Free Speech and the Rule of Law

The Facts of the Case

The Department of Justice is currently engaged in a legal battle that strikes at the very heart of the First Amendment. At its center is the prosecution of James Comey, the former Director of the Federal Bureau of Investigation. The government’s case hinges on a single Instagram post from May 2025. In that post, Comey shared a photograph of seashells he stated he found arranged on a North Carolina beach in the numerical pattern “86 47.” The Justice Department contends this image constituted a “true threat” against then-President Donald Trump, who is the nation’s 47th president.

Federal prosecutors have filed detailed motions arguing that “there is no serious dispute that an objective viewer of Comey’s post could read it to mean ‘Kill President Trump.’” They base this on the dictionary definition of “86” as a slang term meaning “to throw out” or “to get rid of,” combined with the context of Trump being the 47th president. The government seeks to bolster its case by placing the post against a backdrop of assassination plots against Trump occurring around the same time. Notably, prosecutors point to a text from Comey’s wife sent two minutes before the post, containing a screenshot of the definition of “86.”

The government has also cast doubt on Comey’s explanation. They question his account of finding the shells naturally arranged during a walk, noting the location was miles from where he was staying and separated from the ocean by a sand dune. Prosecutors further suggest the post was a calculated effort to generate publicity for Comey’s forthcoming novel, “FDR Drive,” which features a plot about a social media personality whose words inspire violence against his adversaries. They cite text messages where, after the post provoked an outcry, Comey’s publishing agent noted he had “gone viral,” to which Comey replied, “not my intention, but I’ll be OK if it sells books.”

The Defense’s Counterarguments

James Comey and his legal team offer a starkly different narrative. They are fighting to have the case dismissed on multiple grounds, including that it constitutes a vindictive prosecution and that the post did not amount to a true, actionable threat. Comey maintains the post was protected political speech. His lawyers argue that the term “86” has a long-standing, non-violent meaning of “to get rid of” or “eject,” featured on countless protest signs and merchandise. They assert investigators misled judges, submitted false statements, withheld key facts, and repeatedly failed to prove Comey had any intent to threaten physical harm or knew “86” could suggest violence.

To demonstrate the weakness of the prosecution’s theory, the defense highlights the FBI’s own inconclusive investigative work. Agents searched internal databases for any link between Comey and the term “86” and found nothing. They reviewed the file of a mobster, John Gambino, whom Comey prosecuted early in his career, and found no references to “86.” Investigators even interviewed Salvatore “Sammy the Bull” Gravano, a key government cooperator, who stated he never discussed the term with Comey. The defense contends this evidence was concealed from magistrates when applying for search warrants.

Comey’s team frames the indictment as political retribution, part of a “Trump retribution campaign” targeting a vocal critic. They note the indictment came months after an earlier, unrelated case against Comey was dismissed. This perception is fueled by Trump’s own history with Comey, having fired him in 2017 while Comey oversaw the Russia investigation, and his subsequent public calls for Comey and other adversaries to be jailed. The Justice Department denies any vindictiveness, stating the charging decision was made by the local U.S. Attorney without direction from the President or Attorney General.

A Dangerous Precedent for Free Expression

This case represents far more than a legal dispute over one social media post; it is a bellwether for the health of American democracy and the integrity of its justice system. The prosecution’s theory is breathtakingly expansive and dangerously subjective. By arguing that an ambiguous, symbolic post can be objectively read as a direct threat to kill the President, the government is claiming the power to criminalize a vast swath of political speech. The phrase “86” is common vernacular for removal or rejection, from restaurant kitchens to protest movements. To imbue it with a singular, violent meaning in a political context creates a precedent that any critical slogan could be twisted into a prosecutable threat.

The government’s attempt to contextualize the post with unrelated assassination plots is particularly concerning. It suggests that the political climate, created by the actions of unrelated third parties, can redefine and criminalize an individual’s speech. This is a classic chilling effect: if citizens must worry that their symbolic criticism of a leader will be prosecuted as a threat because of violence committed by others, they will inevitably self-censor. The foundational promise of the First Amendment is that robust, even harsh, political debate is protected precisely to avoid this kind of government intimidation.

The Erosion of Prosecutorial Integrity and the Specter of Vindictiveness

The defense’s allegations of investigative misconduct—misleading judges, submitting false statements, withholding exculpatory facts—are gravely serious. If true, they depict a prosecution not in pursuit of justice, but in pursuit of a conviction at any cost. The FBI’s own fruitless searches for evidence linking Comey to the term “86” undermine the core premise of the government’s case. That this potentially exculpatory information was allegedly concealed from the courts overseeing warrants strikes at the impartial administration of justice. It violates the sacred duty of prosecutors to seek truth, not merely to win.

While the Justice Department officially denies vindictiveness, the context is unavoidable and corrosive to public trust. James Comey is one of the most prominent figures ever to cross Donald Trump. Trump’s very public vendetta against him, including calls for his imprisonment, creates a powerful perception that this prosecution is a weaponized extension of that personal and political feud. When the legal system appears to be deployed against the critics of those in power, it ceases to be a neutral arbiter and becomes a tool of oppression. This perception, whether ultimately proven in court or not, does profound damage to the legitimacy of democratic institutions. A justice system feared as an instrument of retribution cannot long sustain a free society.

The Human Cost and the Defense of Liberties

Beyond the legal principles, this case carries a deep human cost. A distinguished public servant faces the full might of the federal government, his reputation and freedom on the line, over the interpretation of a photograph of seashells. The triviality of the alleged “crime” juxtaposed with the severity of the state’s response highlights the absurdity and the danger. It is a spectacle that would be farcical if the stakes for individual liberty were not so terrifyingly high.

As a firm supporter of the Constitution and the Bill of Rights, I view this prosecution with alarm. It embodies an authoritarian drift where dissent is pathologized and criminalized. The First Amendment was designed for controversial speech, for speech that challenges power, for speech that uses metaphor and symbol. To allow the government to be the ultimate interpreter of subjective intent in symbolic political speech is to surrender a fundamental liberty. The defense of James Comey in this instance is not about endorsing the man or his past actions; it is about defending the principle that in a free society, citizens must be able to call for the political removal—the “86ing”—of their leaders without fearing prison cells. To fail to defend this principle is to watch the slow death of American democracy by a thousand legal cuts. The outcome of this case will signal whether the United States remains a republic of laws that protect the critic, or is transforming into a state that uses law to silence him.