Federal prosecutors are defending their indictment of former FBI Director James Comey by arguing no reasonable person could miss the menacing message behind his Instagram photo of seashells, and new court filings raise pointed questions about whether Comey staged the whole thing.
The Justice Department filed motions this week opposing Comey's bid to dismiss the case, offering what amounts to the government's most detailed explanation yet of why it believes a beachside photo crossed the line from political speech into criminal threat. The filing centers on a single image Comey posted to Instagram in May 2025: seashells arranged on a North Carolina beach to read "86 47", a combination prosecutors say any objective viewer could interpret as "Kill President Trump."
The case pits the government's duty to protect the president against a former top law-enforcement official's claim that he was just snapping a picture on a walk. But the DOJ's new filings suggest the facts don't support Comey's version, and that the former FBI director knew exactly what he was doing.
Prosecutors disclosed that just two minutes before Comey published the Instagram photo, his wife texted him a screenshot of a dictionary definition of "86", meaning "to get rid of" or "to refuse service to." The timing alone is difficult to square with Comey's claim that he had no idea the numbers carried a violent connotation.
The DOJ placed the post against what it called "the backdrop of a spate of assassination plots or attempts against Trump in the months before and after Comey's post." That context, prosecutors argued, makes the message unmistakable. "47" is Trump's presidential number. Combined with "86," the government says the meaning is plain.
Prosecutors wrote in the filing:
"There is no serious dispute that an objective viewer of Comey's post could read it to mean 'Kill President Trump.'"
Comey has said he did not know that anyone interpreted the numbers as a call to violence. But the government's filing challenges that claim on multiple fronts, starting with the physical evidence.
Comey has maintained he found the seashells already arranged on the beach during a walk. The DOJ filing says otherwise. The shells were located four miles from the beachfront property where Comey was staying, in an area separated from the ocean by a sand dune. Prosecutors noted there is "no evidence that anyone else arranged, photographed, or even saw the shells."
That detail undercuts the defense narrative that Comey merely happened upon a curious formation and snapped a photo. If no one else saw the shells, and they sat four miles from his rental in a spot blocked from the surf, the government's implication is clear: Comey arranged them himself.
The former FBI director deleted the post shortly after publishing it. But not before his publishing agent texted him that the image had "gone viral." Comey's response, captured in text messages cited by prosecutors: "not my intention, but I'll be OK if it sells books." His agent replied: "Music to an agent's ears."
The post went up just days before the release of Comey's novel, "FDR Drive."
Comey is charged with two federal counts: threatening the life of the president and transmitting a threat in interstate commerce. Together, the charges carry up to ten years in prison, Fox News reported. The case was filed in the Eastern District of North Carolina, where Judge Louise Wood Flanagan, a Bush-43 appointee, has set an October 21 trial date.
This is the second federal indictment Comey has faced in roughly a year. The first, which accused him of lying to Congress, was dismissed after a judge ruled the prosecutor in that case had been illegally appointed. The DOJ moved forward with the seashell case under separate authority.
The lead prosecutor originally assigned to the case, Assistant U.S. Attorney Matthew Petracca, recently stepped down and was replaced by Timothy Severo, according to a court filing. No public explanation was given for the change.
Comey's lawyers have filed their own motions to dismiss, arguing the Instagram post amounts to protected political speech under the First Amendment. They contend the phrase "86 47" has appeared on thousands of items sold online, T-shirts, bumper stickers, protest signs, without anyone else facing prosecution.
The defense filings go further, alleging investigators "misled judges, submitted documents containing false statements, withheld key facts and repeatedly came up empty in their efforts to prove that Comey intended a physical threat or knew that the number 86 could suggest violence."
Comey's attorneys argued in their motion, as Breitbart reported:
"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."
Legal analyst Andrew C. McCarthy, writing in National Review, predicted the indictment is unlikely to survive constitutional scrutiny, saying the seashell post "was not a true threat to assassinate the president, in light not only of common sense but also the Supreme Court's jurisprudence on actionable threats and protected speech." McCarthy added: "I'd be very surprised if there is a trial."
The defense has framed the case as retribution, part of a broader campaign by the Trump Justice Department against the president's political opponents. Trump fired Comey as FBI director in 2017 while Comey was overseeing an investigation into potential ties between Trump's 2016 presidential campaign and Russia. Trump has publicly called for Comey and other perceived adversaries to face legal consequences.
Prosecutors pushed back on that characterization in their Tuesday filing, stating the decision to indict Comey "was made by the U.S. attorney in the area and did not derive from a directive from the president or the attorney general."
Acting Attorney General Todd Blanche, himself a former personal lawyer for Trump, has defended the prosecution publicly. AP News reported Blanche said at the time of the indictment:
"While this case is unique and this indictment stands out because of the name of the defendant, his alleged conduct is the same kind of conduct that we will never tolerate and that we will always investigate and regularly prosecute."
Blanche declined to elaborate on specific evidence of Comey's intent but told reporters at the time of the charges: "And that's how we'll prove intent in this case."
Former Trump advisor Alina Habba made a similar argument during an appearance on "The View," noting that Comey's decades in law enforcement make ignorance a hard sell. Habba told the show's co-hosts: "He is a former FBI director. He knows what 8647 meant. There's no question about it." Habba also cited a separate case in Florida where a person who posted "86 Habba" on Twitter was charged, arguing the phrase is treated as a credible threat regardless of who uses it.
Merriam-Webster, the dictionary used by the Associated Press, defines "86" as "to throw out," "to get rid of," or "to refuse service to." Paired with "47," the number identifying Trump as the 47th president, the combination is at minimum a call to remove Trump from power. Prosecutors say it goes further than that.
Comey's defenders argue the phrase is crude political shorthand, not a death threat, and that prosecuting it sets a precedent that could criminalize protest slogans, merchandise, and social media posts by ordinary Americans. Constitutional law expert Jonathan Turley, while no ally of Comey's, has warned the case faces steep odds. "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."
The trial is currently scheduled for October 21. Whether the case reaches a jury or dies on a pretrial motion remains an open question. So does a more basic one: whether a man who ran the FBI for years genuinely did not understand what "86" means, or whether he understood it perfectly, posted it anyway, and deleted it only after the backlash arrived.
The facts prosecutors have laid out, the wife's text two minutes before the post, the four-mile walk to a sand dune, the deleted photo, the book-sales quip, don't prove guilt beyond a reasonable doubt. But they do make Comey's "I had no idea" defense look like exactly the kind of careful, lawyered-up evasion you'd expect from a man who spent a career in Washington learning how to say one thing and mean another.
