A federal judge appointed by Barack Obama granted a temporary restraining order Monday blocking the National Park Service from removing an anti-Trump flag displayed near the National Mall, even as the Department of Justice pursues federal charges against former FBI Director James Comey for posting the same coded message on social media.
U.S. District Judge Randolph Moss, who previously served in Bill Clinton's Justice Department before Obama elevated him to the federal bench, ruled that the progressive activist group Accountability Now USA may keep its "86 47" flag flying for at least 14 days while litigation continues. The group alleged the Park Service violated its First Amendment rights by threatening to revoke its permit.
The ruling lands in a charged environment. President Trump survived two assassination attempts in 2024, including a July 13 rally in Butler, Pennsylvania, where a gunman climbed onto a nearby roof and fired, grazing Trump's ear before Secret Service agents rushed him offstage. A separate suspect, Cole Allen, stands accused of plotting an assassination attempt tied to the White House Correspondents' Dinner this April. Against that backdrop, the Department of the Interior made clear it views the judge's reasoning with alarm.
A Department of the Interior spokesperson delivered a pointed response to Fox News Digital:
"This opinion is from an Obama-appointed judge. In what world have we lost all decency, to demand that any threat against the President be taken very seriously."
The spokesperson added that while the department "shall and does comply with the Court's orders, this type of behavior should not be tolerated."
Fox News Digital also reached out to Judge Moss's chambers for comment. No response was reported.
The phrase "86 47" pairs restaurant-industry slang, "86" traditionally means to discard, remove, or get rid of something, with the number 47, a reference to Trump as the 47th president. Judge Moss acknowledged the ambiguity in his ruling, finding the meaning of "86" unclear. He wrote that "the evidence shows that Plaintiff displayed the 8647 flag to urge that Congress impeach and remove President Trump from office."
Moss also noted that the flag itself did not contain violent symbols and bore patriotic colors. On the question of presidential safety, the judge conceded a key point: "a true threat to the life or safety of the President would undoubtedly outweigh the interest of the public or the speaker in continuing to urge that unlawful conduct."
But he concluded the evidence before him did not cross that line, at least not enough to deny the temporary restraining order.
The tension between this ruling and the Comey prosecution is hard to miss. The Department of Justice charged the former FBI director with two federal counts over an Instagram post showing seashells arranged to spell out "86 47." Comey faces up to 10 years in prison if convicted. He denied he intended any violent threat toward Trump, explaining he understood "86 47" to mean leave or ditch.
So the same coded phrase now sits at the center of two very different federal proceedings. In one courtroom, a judge appointed by Obama finds the message ambiguous enough to warrant First Amendment protection. In another, DOJ prosecutors treat it as serious enough to carry a decade behind bars.
The government's position is not inherently contradictory, context, intent, and the specific facts of each case differ. But the optics are stark. A progressive activist group gets a court order protecting its right to fly the message on a flag within sight of the Capitol, while a former FBI director faces federal prison for arranging seashells into the same words on Instagram.
The Moss ruling is not the only recent judicial decision to draw scrutiny from Trump allies. U.S. Magistrate Judge Zia Faruqui recently drew backlash after apologizing to Cole Allen, the suspect accused of plotting an assassination attempt tied to the White House Correspondents' Dinner, over Allen's treatment in custody.
Faruqui told Allen from the bench:
"At a minimum, I should be apologizing to him. We are obligated to make sure he's taken care of. Mr. Allen, I'm sorry that things have not been the way they are supposed to."
Whatever the merits of Faruqui's concern about custody conditions, the spectacle of a federal judge publicly apologizing to a man accused of targeting the president reinforced a growing frustration among conservatives: that parts of the D.C. judiciary treat threats against this president with a lighter touch than threats against anyone else.
First Amendment law protects a wide range of political speech, including speech that offends, provokes, and disturbs. No serious conservative wants the government deciding which protest flags are acceptable. The right to dissent, loudly, visibly, even obnoxiously, is not a progressive invention. It belongs to every American.
But context is not optional. A president who has been shot at, who survived an assassin's bullet less than a year ago, is not an abstraction. The coded language of "86" carries a meaning that goes well beyond polite disagreement. In restaurant slang it means to throw something out. In street slang it can mean something far darker. Judge Moss called the term ambiguous. The Department of Justice, in the Comey case, apparently disagrees.
The 14-day window on this restraining order means the legal fight is far from over. Accountability Now USA will have to make its case on the merits. The National Park Service will have to explain what specific authority it invoked when it threatened to pull the group's permit. And Judge Moss will have to reconcile his reading of the First Amendment with the government's own position in the Comey prosecution, or explain why the two cases are meaningfully different.
For now, the flag stays up. The message hangs near the National Mall, visible to tourists, schoolchildren, and the president's motorcade alike. Whether it is political speech or something more reckless is a question the courts will answer in the weeks ahead.
When the same four digits land one man in federal court facing prison and earn another group a judge's protection, ordinary Americans can be forgiven for wondering whether the law applies equally, or only when the politics are convenient.
