Political observers experienced a striking sense of déjà vu this week, as the U.S. Department of Justice unveiled a new criminal indictment against former FBI Director James Comey, accusing him of threatening former President and current 2024 candidate Donald Trump in a social media post. The indictment follows a nearly identical procedural arc to a 2025 case against Comey that was ultimately thrown out by a federal judge, and it has already sparked widespread debate over political motivation, free speech protections, and the strength of the government’s legal argument.
Hours after the indictment was made public, Comey released a pre-recorded video on social media pushing back against the charges. By Wednesday, the former FBI chief appeared in person at a federal courthouse to surrender, marking the second time in less than a year he has faced criminal process from the Trump-aligned Department of Justice.
The current charges stem from an Instagram post Comey shared last year, which featured a photograph of seashells arranged on a beach to spell out the numbers “86 47”. Prosecutors argue the sequence constitutes a direct threat to Trump: “47” is widely associated with Trump’s expected status as the 47th U.S. President if he wins the 2024 election, while “86” is a slang term originating in the restaurant industry that the DOJ claims carries a meaning of causing harm or removing a person. In the government’s framing, “a reasonable recipient who is familiar with the circumstances would interpret [the post] as a serious expression of an intent to do harm to the President of the United States.”
Comey faces two felony counts: one count of threatening to harm the sitting president, and a second count of digitally transmitting that alleged threat. Comey has long pushed back on the interpretation of his post. Shortly after sharing the original image, he deleted it and posted a follow-up explanation, noting he had encountered the naturally arranged seashells during a beach walk and recognized it as a political message, but had never intended to signal violence. “I didn’t realize some folks associate those numbers with violence. It never occurred to me, but I oppose violence of any kind so I took the post down,” he wrote at the time. He has repeated that defense in the wake of this week’s indictment.
Legal experts across the ideological spectrum have cast significant doubt on the government’s ability to secure a conviction, echoing the skepticism that greeted the 2025 charges against Comey. To win a guilty verdict, prosecutors must clear multiple high legal bars, starting with proving the post qualifies as a “true threat” — a standard the U.S. Supreme Court has defined as a statement that conveys a serious intent to commit unlawful violence. Prosecutors must also demonstrate Comey acted recklessly, and that he understood his post would be interpreted as a serious threat of harm.
“It’s a very weak indictment, and it doesn’t seem to me that it’s a chargeable case,” said Evan Gotlob, a former federal prosecutor and current partner at law firm DarrowEverett. “This seems fit to get dismissed at some point.”
Barbara McQuade, a former U.S. Attorney for the Eastern District of Michigan who now teaches law at the University of Michigan, noted that the multiple common definitions of “86” and Comey’s explicit denial of violent intent make an unanimous guilty verdict from a jury extremely unlikely. “I can’t imagine that 12 jurors will be able to find Comey guilty unanimously beyond a reasonable doubt,” McQuade told the BBC.
Even conservative legal scholars who have previously aligned with Trump and criticized Comey have questioned the indictment. Jonathan Turley, a prominent conservative commentator who has repeatedly backed Trump in legal disputes, wrote in a Fox News column that despite his longstanding criticism of Comey, he believes the current indictment is facially unconstitutional under the First Amendment’s free speech protections, unless the government holds undisclosed damaging evidence that has not yet been made public. “I would prefer to crawl into one of Comey’s seashells than write a column supporting him,” Turley wrote. “However, here we are. The fact is that I believe that this indictment is facially unconstitutional, absent some unknown new facts.”
Comey’s legal team has already signaled they will likely move to dismiss the charges on the grounds of vindictive prosecution, the same argument they successfully used to challenge the 2025 indictment.
Department of Justice and FBI leaders have strongly pushed back against claims of political motivation, noting the investigation stretched on for roughly 10 months before a grand jury voted to approve the indictment. Acting Attorney General Todd Blanche defended the charges in an interview with CBS News, noting the indictment was unveiled just days after an armed attacker targeted Trump and other senior administration officials at the White House Correspondents’ Dinner – the third documented assassination attempt against Trump in two years, following a 2024 rally shooting where Trump was grazed by a bullet and a separate incident where an armed man was found staking out Trump’s Florida golf course.
“Of course, it’s serious when you threaten the president of the United States,” Blanche said. “Anybody that tries to put forward some narrative that this is just about seashells, or something to the contrary is missing the point. You cannot threaten the president of the United States.” Blanche emphasized the charges were “absolutely, positively not” driven by political considerations.
FBI Director Kash Patel echoed that defense at a press briefing, stressing that the lengthy investigation and grand jury approval process demonstrate the case was not rushed or politically motivated. Not all Republican lawmakers have backed the prosecution, however: while some, like Pennsylvania GOP Representative Dan Mauser, called Comey’s post “concerning” and agreed it could be interpreted as a violent threat, other GOP members have declined to publicly endorse the indictment, mirroring the skepticism seen among some conservative legal circles.