For the second time in as many years, former FBI Director James Comey was indicted last week, this time over a photograph posted to his Instagram account.
It marks the second criminal case brought against Comey by the Department of Justice and has renewed criticism from those who argue that the current DOJ has increasingly pursued President Donald Trump’s political adversaries.
The first indictment, filed last year, accused Comey of lying to Congress about leaks to the press. That case was later dismissed after a federal judge ruled that the interim U.S. attorney for the Eastern District of Virginia had not been lawfully appointed.
The latest case centers on a photograph showing seashells arranged to form the numbers “86 47,” which Comey said he encountered during a walk on the beach.
According to court documents, a grand jury in the Eastern District of North Carolina approved charges that include making a threat against the president and transmitting a threat in interstate commerce.
Comey responded in a video posted to his Substack account.
“I’m still innocent. I’m still not afraid. And I still believe in the independent federal judiciary, so let’s go.”
For critics of the administration, the case has become another example of what they see as Trump publicly encouraging the Justice Department to investigate political opponents, including Comey, whom Trump has long viewed as a central figure in what he has described as the weaponization of the justice system against him.
The indictment also comes less than a month after Trump dismissed Attorney General Pam Bondi. Critics of the administration have argued that Bondi was removed in part because she was not sufficiently aggressive in pursuing Trump’s priorities.
Todd Blanche, Bondi’s former deputy and one of Trump’s former personal attorneys, is currently leading the Justice Department.
“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,” Blanche said at a press conference last week.
Almost immediately after Comey posted the photograph, Republican lawmakers and administration officials criticized it and argued that the image could be interpreted as a threat against Trump.
In modern slang, “86” is commonly used to mean getting rid of or removing something. Some have also interpreted the phrase more darkly as referring to killing someone. The number 47 could be understood as a reference to Trump, the 47th president.
Comey captioned the photograph:
“Cool shell formation on my beach walk.”
He removed the post later that day and said he had interpreted the shells as a political message but had not realized that some people associated the numbers with violence.
“It never occurred to me but I oppose violence of any kind so I took the post down,” Comey wrote.
The case could face significant legal challenges.
Supreme Court precedent has established a high bar in prosecutions involving alleged threats, and prosecutors would have to prove that Comey knowingly and willfully communicated a threat against the president.
Comey’s attorneys could also point to the fact that he has now faced multiple prosecutions under the Trump administration as part of any effort to argue that the case is politically motivated or selectively enforced.
In the earlier prosecution, Comey sought dismissal on selective-prosecution grounds. That argument was never fully resolved before the case itself was dismissed.
The current indictment could also face First Amendment challenges, particularly over whether an ambiguous social media post can legally qualify as a “true threat.”
Mary Anne Franks, a law professor at George Washington University, argued that prosecutors would need to establish both a sufficiently clear threatening meaning and evidence that the communication would reasonably be understood as such.
She described the post as “a very ambiguous statement at best.”
Comey’s indictment comes as Blanche has moved aggressively on several investigations involving individuals who have previously drawn criticism from Trump.
Blanche has made changes involving prosecutors overseeing an investigation into former CIA Director John Brennan. He has also dismissed prosecutors who previously worked on cases involving abortion protesters and brought charges against a former senior official at the National Institute of Allergy and Infectious Diseases accused of concealing records related to the COVID-19 pandemic.
The Justice Department has also said it plans to subpoena members of Fulton County District Attorney Fani Willis’ security detail.
Willis previously brought criminal charges against Trump and several others over efforts to challenge the results of the 2020 presidential election.
