CREATORS
May 5, 2026
The acting
Attorney General of the United States, Todd Blanche, has announced the
indictment of former Director of the FBI, James Comey. In any other
administration, this would be huge news.
America
reacted to the indictment with a yawn. This is the second time, and the second
attorney general to appear at a press conference and announce the indictment of
Comey. The first indictment didn't go so well for the Trump administration.
Days
before Comey's first indictment, he was singled out by name in a social media
post wherein President Donald Trump appeared to appeal directly to the
Department of Justice to bring charges against Comey and complained that
investigations into his political enemies had not resulted in criminal charges.
Former
Attorney General Pam Bondi announced the first indictment based on allegations
that Comey lied to Congress five years prior during remote testimony about
Russian interference in the 2016 election. A federal judge dismissed the case,
finding that the acting U.S. Attorney who sought the indictment was unlawfully
holding her position and lacked authority to do so.
If
possible, the second indictment is more suspect than the first. Comey was
investigated last year over an Instagram post of a photograph of seashells in
the sand on some sunny beach. The shells were aligned in the figures of
"86 47." With the image, Comey wrote: "Cool shell formation on
my beach walk."
According
to NBC News, "the term '86' is used in the restaurant industry, and it can
informally mean 'to get rid of.' The number '47' was thought to be related to
Trump, the 47th president.
The
indictment claims that a "reasonable recipient who is familiar with the
circumstances" would interpret the seashell image as "a serious
expression of intent to do harm to the President of the United States."
This past
Sunday, the acting Attorney General appeared on NBC's "Meet the
Press," where he gave "assurances" that not everyone who posts
the "86 47" message will be charged with threatening the president.
"That
phrase is used constantly," according to Blanche, " ... every one of
those statements do not result in indictments." Apparently, only avowed
enemies of President Trump will face indictment for posting "86 47"
online.
Let's
start our examination of this indictment with the Fox News comments of George
Washington Law School professor Jonathan Turley. If you don't know Turley,
let's just say you won't find his name on a Trump enemy list, making his
comments all the more surprising.
Turley
told Fox, "If Comey is charged for the shell picture, it would face a
monumental challenge under the First Amendment," Turley said. "In my
view, the image itself is clearly protected speech. Absent some other unknown
facts or elements, it would be unlikely to survive a constitutional
challenge."
This time,
Comey is charged with making a threat against the president and transmitting a
threat in interstate commerce. Those charges require the government to prove
beyond a reasonable doubt that the former FBI director "knowingly and
willfully" issued a threat to "take the life of" the president.
The
Conservative podcaster Glenn Beck said recently, "If the seashell thing is
the best the D.O.J. has on Comey, we're in trouble."
Alexis
Loeb, a former DOJ deputy chief, told The Hill that the term "86" is
open to different interpretations. "In the typical case — again, because
the government's burden is to prove its case beyond a reasonable doubt — you
typically wouldn't see threats that are readily open to non-violent
interpretations."
The
pattern of multiple indictments against Comey is certainly an issue that
Comey's defense team will raise. There is clearly an opportunity to argue
vindictive prosecution or the weaponization of the Justice Department to settle
a score with one of the president's enemies.
However,
it may never get to that — Eugene Volokh, a senior fellow at the Hoover
Institution at Stanford University who specializes in First Amendment law, told
CNN, "This is not going anywhere. This is clearly not a punishable
threat."
Matthew T.
Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His
book, "The Executioner's Toll," 2010, was released by McFarland
Publishing. You can reach him at www.mattmangino.com and follow him on Twitter
@MatthewTMangino
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