The Comey Threat Indictment Is A Grave Embarrassment To The United States Department of Justice And The Rule of Law

On April 28, 2026, the United States Department of Justice indicted former FBI Director James Comey over a mildly sassy arrangement of seashells. The charge is preposterous and no competent or honest prosecutor would bring it. It represents a betrayal of the professional and ethical obligations of every U.S. Department of Justice attorney involved, and reflects the complete collapse of the Department’s credibility and independence in favor of a cultish and cretinous devotion to Donald Trump.

The indictment concerns James Comey’s May 25, 2025 post to his Instagram account remarking “Cool shell formation on my beach walk” and showing shells arranged to spell out “86 47”:

47 is Donald Trump, the 47th President of the United States, and “86” is slang for ditch, get rid of, or discard.

Based on this, the United States Attorney’s Office for the Eastern District of North Carolina — the venue of the sassy beach stroll — secured an indictment against Comey for two federal felonies: threatening the President of the United States in violation of Title 18, United States Code, Section 871 and transmitting a threat in interstate commerce in violation of Title 18, United States Code, 875(c). In both counts, the government asserts that “a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of intent to do harm.” That is, of course, a preposterous lie.

Let’s look at what the government would have to prove to convict Comey of these offenses, using cases from the Fourth Circuit, which governs this district. To prove a threat against the President in violation of Section 871, the prosecution must offer “(1) the proof of "a true threat" and (2) that the threat is made "knowingly and willfully."“ United States v. Lockhart, 382 F.3d 447, 449-450 (4th Cir. 2004). To prove a threat in interstate commerce in violation of Section 875(c), the government must prove that “(1) that the defendant knowingly transmitted a communication in interstate or foreign commerce; (2) that the defendant subjectively intended the communication as a threat; and (3) that the content of the communication contained a "true threat" to kidnap or injure.” United States v. White, 810 F.3d 212, 220-21 (4th Cir. 2016). For purposes of both statutes, a “true threat” is a statement which an “ordinary, reasonable recipient who is familiar with the context in which the statement is made would interpret it as a serious expression of an intent to do harm.” White, 810 F.3d at 221.

Prosecutions for threats against the President played a substantial role in developing the First Amendment doctrine of “true threats,” which separates bluster and rhetoric from actual threats to do harm. In Watts v. United States, 394 U.S. 705 (1969), the United States Supreme Court took up the conviction of an 18-year-old man who said this during an anti-draft protest during Vietnam: "They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J. . . . . They are not going to make me kill my black brothers." The Court articulated the core of the “true threat” doctrine, noting that political rhetoric, hyperbole, and robust debate that does not convey an intent to do harm is protected by the First Amendment:

No minimally rationally person could possibly conclude, seeing James Comey’s beachside dad joke, that he was expressing a sincere intent to harm the President. Nobody could look at it and conclude that Comey intended to convey that message. In evaluating whether a threat is “true,” the trier of fact must consider the context. Here the context is seashells. The context is the former Director of the FBI, a lifetime member of law enforcement, who is a well-known critic of the President and a target of the President’s wrath, using a campy mechanism to express opposition to the President, using slang for “ditch” or “eject” or “get rid of.” No rational person could see that and say “the former director of the FBI is saying he’s going to kill the President"!”

I could now cite to you a legion of cases for that proposition, finding rhetoric far more concerning than this protected by the First Amendment, analyzing language and context to show this is protected. But it wouldn’t matter, would it? If you are a minimally rational person, you don’t need to see the precedent, and if you’re a cultist, no amount of precedent matters to you.

As a lawyer commenting on the Trump administration’s legal arguments, I face a challenge: how do I convey to non-lawyers, or even lawyers in different fields, the shameless fatuity of some of the Trump Justice Department’s arguments? Words fail. This case is overtly, obviously, on its face, ridiculous and premised on a foolish and unconstitutional theory. I know it as confidently that those of you who work with numbers know that 2 + 2 = 5 is not a plausible argument. I know it as confidently that those of you in the arts know that “John Wayne Gacy is the most respected American painter” is wrong.

Yet we live under a Department of Justice that will commit this travesty and argue it’s valid. Even now, members of Congress — nominally sworn to defend the Constitution — are defending it. And soon enough, some puerile throne-sniffer of the legal academy — some Wurman, some Barnett, some Turley — will emerge to argue that it’s plausible, so thoroughly has Trumpism corrupted us.

I believe it is unlikely the indictment will survive. You can’t attack a federal indictment by arguing that the government doesn’t have enough evidence, but you can challenge defects that appear on its face. Comey’s attorneys will attack the indictment as invalid on its face — that is, argue that on the face of the indictment, seashells spelling out “86 47” are protected by the First Amendment, without need to assess the strength of evidence. Moreover, I expect Comey will repeat his motion for selective prosecution, previously brought in the now-dismissed false statements case in Virginia. The extreme weakness and facial ludicrousness of this indictment will strengthen that motion. The assigned judge was appointed by a Republican but is not a lunatic.

But that’s not the point, is it? The point of the indictment is to demonstrate that the United States Department of Justice is wholly an instrument of Donald Trump’s senescent pique, no more independent of him than a boil on his ass. The point is to show that the administration can, and will, use the Department’s mechanisms to punish enemies. The point is to show that the Department can, and will, punish protected speech. The point is to show that the Department is staffed by committed fanatics willing to do anything, however unethical and unconstitutional, to promote Trump.

The point is to show that in the war between Donald Trump and the U.S. Department of Justice, Trump has won. Now they’re on the field slitting the throats of the wounded and looting bodies.

The road back to credibility for the Department will be long and arduous. I do not expect it to recoup its presumption of regularity or respect within a generation. Trump has twisted it beyond recognition, as we also saw today in this humiliatingly buffoonish pleading in the East Wing case:

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One remedy is to keep fighting, expel the craven Republicans (and some Democrats) supporting Trump, then expel Trump himself. The remedy is to make certain that nobody involved in this travesty is ever respected or trusted or accepted again. That means among others W. Ellis Boyle, the U.S. Attorney for the Eastern District of North Carolina, and Matthew R. Petracca, the assistant United States Attorney responsible for this jurisprudential prolapse. Never trust them again, and never trust or tolerate again anyone who treats them as acceptable.

Edited: I added the wrong file at the end of the post, fixed.