Court Battles

DOJ casts Comey case as an ordinary threat prosecution. Is it?

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by Ella Lee - 05/03/26 6:00 AM ET

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by Ella Lee - 05/03/26 6:00 AM ET

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The Justice Department is portraying its new prosecution of former FBI Director James Comey as not unlike dozens of other cases faced by individuals who have hurled threats at public officials.

But the Comey case may present unique challenges for prosecutors seeking to secure a conviction against the longtime foe of President Trump, legal experts say.

The former FBI director faces two criminal charges over allegations a photo of seashells he shared on social media last May that displayed the message “86 47” amounted to a threat on Trump’s life. He has not yet entered a plea but has denied any wrongdoing.

Acting Attorney General Todd Blanche said at a press conference announcing the charges this week that the DOJ has prosecuted dozens of cases involving threats against “all sorts of individuals” over the past year, from White House border czar Tom Homan to former President Biden.

“We take these seriously,” Blanche said. “Every single one of them.”

Some 133 federal cases were brought over threats against public officials last year — a record high, according to data from the National Counterterrorism Innovation, Technology, and Education Center (NCITE) at the University of Nebraska-Omaha. This year, there has so far been 46 federal cases involving threats against public officials.

Comey’s case is one of them.

Proving intent

At the heart of the case is the photo of seashells arranged to read “86 47” and posted to Instagram. The phrase “86” is a slang term for removing or throwing out something, and Trump is the 47th president.

Former federal prosecutors told The Hill that, with the evidence publicly known, the case appears to fall extraordinarily short.

“This case is absurd,” said Sarah Krissoff, a former federal prosecutor in the Southern District of New York.

The charges Comey faces — making a threat against the president and transmitting a threat in interstate commerce — require evidence that the former FBI director “knowingly and willfully” issued a threat to “take the life of” the president.

“There is a lot of case law underlying this statute, which outlines what type of language constitutes a threat, and what type of language isn’t a threat,” said Krissoff, who now works as a white-collar defense attorney. “And I just think there’s just no way — the government does not get over the first hurdle here, which is to show that this was a true threat, and their second hurdle is they have to show intent to make a threat, which they’re never going to show.”

Most speech is constitutionally protected, but the First Amendment does not shield “true threats.” Whether certain speech amounts to such depends largely on the context in which it was said.

“You can’t yell ‘fire’ in a movie theater because it could really harm a lot of people, if there’s a stampede out of there,” said former federal prosecutor Evan Gotlob. “So, you can’t freely threaten public officials.”

The indictment against Comey reads that “a reasonable recipient who is familiar with the circumstances” would interpret the “86 47” message as a “serious expression of an intent to do harm” on Trump.

But Alexis Loeb, a former Justice Department deputy chief, noted that the term “86” is open to different interpretations.

Restaurant workers, for example, use the term to indicate that an item is sold out or to turn away a customer.

“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,” Loeb said.

Many of the federal threats cases charged in recent months have centered on more explicitly violent language.

For example, Pennsylvania man Shawn Monper pleaded guilty last month to making threats to assault and murder Trump. In charging papers, prosecutors said he made comments on YouTube including, “I have bought several guns and been stocking up on ammo since Trump got in office” and “I’m gonna assassinate him myself.”

Another man, Shannon Mathre, was charged in February with threatening to kill Vice President Vance during a visit to Ohio in January, stating “I am going to find out where (Vance) is going to be and use my M14 automatic gun and kill him.”

“The Comey indictment enters the realm of the surreal and the absurdist,” Rep. Jamie Raskin (D-Md.) told The Hill. “He’s on the beach. He p