Acting Attorney General Todd Blanche says an 11-month investigation produced “a body of evidence” that supports the federal indictment against former FBI Director James Comey, which improbably charges him with publicly threatening to assassinate President Donald Trump. That evidence, Blanche said in an interview on NBC’s Meet the Press last Sunday, goes beyond the May 15 Instagram post at the center of the case, which shared a photograph of seashells arranged in the sand to form the message “86 47″—a common expression of opposition to the president.
Although Blanche declined to specify the nature of that additional evidence, he said it would prove the “intent” required to convict Comey. That seems highly doubtful, especially when it comes to the first count in the indictment, which charges Comey with violating 18 USC 871 by “knowingly and willfully” making “a threat to take the life of, and to inflict bodily harm upon, the President of the United States.”
Comey did that, according to the indictment, by “publicly post[ing] a photograph on the internet social media site Instagram” that “depicted seashells arranged in a pattern making out ’86 47,’ which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States.” The question of how “a reasonable recipient” would understand that message is constitutionally crucial under Supreme Court decisions that delineate the distinction between “true threats” and protected speech.
Given the typical slang usage of eighty-six, which broadly means “reject,” “discard,” or “abandon,” and the ubiquity of the specific slogan at issue here, which appears on a wide variety of T-shirts and bumper stickers you could order from Amazon right now if you were so inclined, it strains credulity to posit that the phrase is reasonably interpreted as a murder threat. Nor is that the only problem with this charge.
To convict Comey under Section 871, prosecutors would have to prove beyond a reasonable doubt that he “knowingly and willfully” threatened violence against the president. That requirement goes beyond the sort of subjective intent that the Supreme Court has said the First Amendment requires to treat an allegedly threatening statement as a crime.
In the 2023 case Counterman v. Colorado, the Court said “a mental state of recklessness is sufficient,” meaning the government “must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” The standard under Section 871 is stricter: It requires proving that the defendant not only “consciously disregarded a substantial risk” that his statement would be viewed as a threat of violence but intended that it be understood as such.
In the 2004 case United States v. Fuller, for example, the U.S. Court of Appeals for the 7th Circuit held that a defendant can be convicted of violating Section 871 even if he does not intend to act on his threat. But it said the government must “establish that the communicator knowingly and willfully made a threat,” meaning he “intend[ed] it to be received as a serious threat, regardless of whether he intended to carry it out.”
The other count in the Comey indictment is based on 18 USC 875, which makes it a felony to transmit an interstate communication that contains “any threat to injure the person of another.” Unlike Section 871, that provision does not specify that the defendant must make a threat “knowingly and willfully.” But under Counterman, prosecutors would still have to prove that Comey “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
By itself, the Instagram post does not come close to establishing the elements of either crime, as even Comey’s critics have noted. In an interview with CNN’s Jake Tapper on Sunday, Sen. Thom Tillis (R–N.C.) described Comey as “a political hack” and “the biggest disappointment of my Senate career.” Despite his low opinion of Comey, Tillis thinks the case against him looks like “a vindictive prosecution” because “86 47” cannot plausibly be considered a death threat. “I can’t find any evidence where ’86’ is used as a call for violence,” he said. “It better be more than just the picture. There have to be facts and circumstances beyond that to convince me.”
There is “more than just the picture,” according to Blanche. “I am not permitted to get into the details of what the grand jury heard or found,” he said on Meet the Press. “But rest assured that it’s not just the Instagram post that leads somebody to get indicted.”
The slogan “86 47” is “posted constantly,” Blanche conceded. “That phrase is used constantly. There are constantly men and women who choose to make threatening statements against President Trump. Every one of those statements do not result in indictments, of course. There are facts, there are circumstances, there are investigations that have to take place. “
According to Blanche, all uses of “that phrase” qualify as “threatening statements against President Trump,” which means everyone who wears an “86 47” T-shirt or displays an “86 47” bumper sticker is potentially guilty of violating Section 871. He says “investigations” are necessary to determine whether that charge is appropriate. Yet the FBI cannot and does not launch an investigation every time someone uses “that phrase,” which raises the question of why Comey was singled out.
Given President Donald Trump’s frequently expressed antipathy toward Comey and his public demand that the Justice Department find a crime to pin on him, the answer seems pretty clear. Blanche insisted that Trump “wants justice,” not revenge. But that motivation does not explain why the government decided to conduct the 11-month investigation that Blanche described, which initially was based on nothing more than an Instagram post of a slogan that “is used constantly.”
Gliding over that point, Blanche said the investigation turned up “witnesses,” “documents,” and “materials” that will be used to “prove intent.” But it is hard to imagine how such evidence could establish that “a reasonable recipient” would view the Instagram post as a death threat, let alone that Comey either intended that it be understood as such or recklessly disregarded the supposedly “substantial” risk that it would be.
The first issue hinges on how “86 47” is reasonably understood. Is it reasonable to assume that Republicans who advertised their politics by wearing “86 46” T-shirts or displaying “86 46” stickers during the Biden administration were threatening to kill the president? If not, it is plainly not reasonable to interpret “86 47” that way. No evidence collected by the FBI or federal prosecutors is going to refute that point. Yet that is what the government must do to treat Comey’s Instagram post as a “true threat.”
Leaving aside that seemingly insurmountable obstacle, what sort of evidence could the government possibly have that would elucidate Comey’s state of mind when he posted the seashell photo? Maybe Comey confessed to someone, contrary to what he publicly said after he deleted the seashell picture in response to criticism, that he always knew “some folks associate those numbers with violence.” Maybe there are “documents” indicating that Comey “knowingly and willfully” threatened to kill the president in the hope that the resulting controversy would goose his book sales. But probably not.
During a press conference on the day of the indictment, Blanche portrayed the case against Comey as typical of the charges that the Justice Department commonly pursues against people who threaten public officials. “Over the past year, this department has charged dozens of cases involving threats against all sorts of individuals,” he said. “We take these seriously, every single one of them.”
That is obviously not true if you agree that people who post, wear, or display the message “86 47” are all making “threatening statements against President Trump.” As Blanche concedes, those people typically are not investigated, let alone indicted. And when people do face charges under Section 871 or Section 875(c), the cases tend to look quite different from this one.
Trying to support his claim that the Comey indictment is business as usual at the Justice Department, Blanche cited a recent case in the Northern District of Florida involving a Tallahassee man, Diego M. Villavicencio, who pleaded guilty to two counts of sending interstate threats. The evidence included X posts saying Federal Reserve Chairman Jerome Powell “will be shot and killed September 23” and adding that “Jerome is next.” Villavicencio also had threatened Rep. Eric Swalwell (D–Calif.) in an X post, saying, “I’ll kill you and your family and you won’t do anything about it. Corruption listens to bullets.” He followed that up with a direct message to Swalwell saying, “You are going to be shot and killed on September 24.” In a 4chan post, Villavicencio announced his plan to drive by Mar-a-Lago and “take a couple of shots at trump and some of the other corrupt plutocrats.”
Blanche also mentioned a case “where the defendant pled guilty recently to threatening former President Biden.” He may have been referring to Troy Kelly, a Crown Point, New York, resident who last August “admitted that in May 2024 he posted a threat to kill President Biden on a social media website and that he intended it to be understood as a threat.” Kelly had responded to one of Biden’s posts by warning that he was “gonna put a bullet in your head if I ever catch you.”
In another recent case, a Pennsylvania man, Shawn Monper, was charged last year with violating Section 875(c) by making threats on YouTube. “When are we going to stand up and kill these people?” he asked in one video. “That’s why Trump needs to die,” he said in another. “I have bought several guns and [have] been stocking up on ammo since Trump got in office,” he reported, later announcing that “I’m gonna assassinate him myself.”
According to an indictment filed three months ago in the Northern District of Ohio, Shannon Mathre was similarly clear about his intentions when he threatened Vice President J.D. Vance. “I am going to find out where he is going to be and use my M14 automatic gun and kill him,” Mathre allegedly said, prompting a charge under Section 871, which covers threats against the vice president as well as the president.
Comey, by contrast, posted a photo of seashells “arranged in a pattern making out ’86 47′”—a phrase that Blanche concedes is commonly used by Trump critics who never face federal charges. “In the typical case,” former federal prosecutor Alexis Loeb told The Hill, you “wouldn’t see threats that are readily open to nonviolent interpretations.”
One of these cases is clearly not like the others. Yet Blanche insists that Comey’s Instagram post is legally indistinguishable from the explicit threats made by defendants like Villavicencio and Kelly.
Although the Comey indictment is “unique” and “stands out because of the name of the defendant,” Blanche told reporters last week, “his alleged conduct is the same kind of conduct that we will never tolerate and that we will always investigate and regularly prosecute.” In reality, the case against Comey “stands out” not just because the defendant is famous but also because his purported death threat was actually political speech protected by the First Amendment.
The post Whatever Evidence the DOJ Has Against James Comey, It Cannot Transform '86 47' Into a Death Threat appeared first on Reason.com.
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