James Comey Charged Over Instagram Post Showing Seashells

Comey posted the photo last May while on a beach walk, later deleting it and explaining he assumed "86 47" conveyed a political message without realizing associations with violence. The indictment charges him under a federal statute for transmitting a threat in interstate commerce, requiring proof that he knew the communication would be viewed as a threat, per the 2015 Supreme Court ruling in Elonis v.

U.S. This is the second criminal case against Comey by the Justice Department. He was indicted in September on charges of lying to Congress, but a judge dismissed that case, finding the prosecutor unlawfully appointed. The court did not rule on Comey's claims of vindictive prosecution in that instance.

Acting Attorney General Todd Blanche announced the indictment earlier this week. When asked about similar uses of "86" by others, such as former GOP Rep. Matt Gaetz referencing Republican leaders in 2024 or right-wing influencer Jack Posobiec posting "86 46" about then-President Joe Biden in 2022, Blanche said pursuits would depend on investigations and factors.

Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression, stated that the case could chill political speech, as people might self-censor to avoid government action. He noted Comey's access to high-level legal resources is not typical for most Americans.

Perry Carbone described the post as protected political speech, lacking a serious expression of intent to commit violence. Carissa Byrne Hessick suggested a judge could dismiss charges on statutory grounds before reaching constitutional questions.

“This post falls clearly within the ambit of protected political speech. The Supreme Court has made clear that even hyperbolic or what some might consider intemperate political expression, it's protected unless it crosses the line into a real threat.”

Experts agreed the government faces challenges proving Comey's intent, given the post's ambiguity and his subsequent explanation. The case highlights tensions between free speech protections and interpretations of threats against public figures.