The now-deleted Instagram post that landed James Comey in hot water. Photo / Instagram
The criminal indictment of former FBI director James Comey – for allegedly threatening US President Donald Trump – appears to fall short of a 2015 Supreme Court ruling.
Chief Justice John G Roberts Jr, along with a majority of the court, ruled in the 2015 case Elonis v United States that prosecutors seeking to convict someone of sending a dangerous message must prove the person intended to make a violent threat.
The ruling makes a pointed distinction between a genuine threat and mere speech, legal analysts say.
The indictment centres on a photo that Comey posted last year showing seashells on a beach arranged to spell out “86 47”. Because 86 can signify “to get rid of”, and Trump is the 47th President, prosecutors say the shells’ arrangement means “a reasonable recipient” would interpret the message as “a serious expression of an intent to do harm” to Trump.
But that language is from an older, lower legal standard, one that the Supreme Court explicitly overruled in the 2015 case.
Eight legal experts interviewed for this article said the Comey indictment failed to provide evidence that the former FBI director intended his social media message as a genuine threat to the President.
Under court rules, prosecutors are obligated to shape the language of their charges to conform with the current state of the law.
Mary Anne Franks, a George Washington University professor who specialises in First Amendment law, said the Comey indictment failed to do that.
She said: “It not only should be dismissed outright, it should also mean sanctions for any lawyer who signed off on it. I cannot think of any possible evidence that would make this particular phrase a threat.”
David Cole, a law professor at Georgetown University, agreed that Comey’s attorneys could ask the court to dismiss the case because prosecutors failed to state a criminal offence.
He said: “The indictment lacks an essential element of a true threat crime – mainly that the speaker intended to threaten violence, or acted in conscious disregard of the substantial risk that their communication would be viewed as threatening. They don’t allege any of that in the indictment.”
An attorney for Comey declined to comment.
At a news conference this week announcing Comey’s indictment, acting attorney general Todd Blanche said he understood that prosecutors need to prove intent, and he said they would do so at trial.
While such evidence is typically included in an indictment, Blanche said it would be unfair to Comey to reveal the prosecution’s case in the charging documents.
Comey is a long-time political foe of Trump’s who, as FBI director, was involved in investigating the 2016 Trump campaign’s ties to Russia. Trump fired Comey over his involvement in the probe.
Comey, who posted the photo of the arrangement in May 2025, removed it after receiving criticism that it could be seen as advocating violence. He has said he stumbled upon the “86 47” message as he was walking on the beach, suggesting he didn’t create it himself.
He denies any wrongdoing.
The Justice Department charged the former FBI director with two crimes: One count of making threats against the President and another of transmitting a threat across state lines.
The Supreme Court has spent decades honing the definition of a threat under the statutes that Comey is charged with violating. In 1966, a man named Robert Watts said at a protest that he had received his draft letter, and “if they ever make me carry a rifle, the first man I want to get in my sights is LBJ”.
He was arrested and charged with threatening President Lyndon B Johnson. But the Supreme Court said that Watts’ statement constituted political speech, not a bona fide threat.
Comey’s lawyers have not said whether they intend to challenge the legal case made in the indictment as based on outdated standards. The defence team could request from prosecutors a bill of particulars, which are intended to provide the defence with more clarifying details about claims in the indictment.
At Comey’s initial appearance in court this week, his team signaled it intended to argue that the Justice Department was illegally prosecuting Comey for his criticism of Trump.
Comey’s team raised similar arguments last year, when the Justice Department charged the former FBI director in a separate case alleging he had lied to Congress in 2020 over whether he had leaked investigative information to the media.
A judge never ruled on Comey’s motion in that earlier case because the charges were dismissed when she ruled that the US attorney who brought them had been improperly appointed. The Justice Department continues to appeal that decision.
- Washington Post
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