Ex-FBI Director James Comey faces charges over “86 47” post. But how far will the case get?

Washington — Former FBI Director James Comey is facing a second round of criminal charges after a federal grand jury voted this week to indict him for allegedly making threats against President Trump.

But legal experts expect that the indictment will be challenged on multiple grounds, and they believe it’s unlikely Comey will stand trial on charges arising out of a now-deleted Instagram post which showed a photo of seashells arranged to form the numbers “86 47.”

The indictment alleges the post could reasonably be interpreted as “a serious expression of intent to do harm” to the 47th president of the United States. Mr. Trump said on Truth Social, “’86’ is a mob term for ‘kill him.'” Merriam-Webster defines “86” as slang meaning “to throw out” or “get rid of,” and notes the expression is commonly used in restaurant kitchens.

“If you can charge somebody for arranging seashells in the sand with an ambiguous message, if that’s if that’s a threat, if that’s criminal speech, then then the First Amendment is in serious jeopardy,” said Perry Carbone, a law professor at Pace University and former chief of the criminal division for the U.S. Attorney’s Office in Manhattan.

The former FBI director appeared in federal court Wednesday. He has not yet entered a plea, though he declared in a video posted to Substack, “I’m still innocent.”

“This case is going to prove, I think, to be a real challenge for the government,” Carissa Byrne Hessick, a law professor at the University of North Carolina who is an expert in criminal law, told CBS News. “In addition to claims that Comey will be able to raise about selective and vindictive prosecutions, which are claims that he raised last year when he was indicted, there are also pretty significant legal issues associated with the particular charges that the government decided to bring.”

This is the second criminal case that the Justice Department under Mr. Trump has brought against Comey. He was first indicted in September on two criminal counts alleging he lied to Congress. He sought to have those counts dismissed on numerous grounds, including the argument that the prosecution was vindictive and selective.

A judge ultimately did toss out the case, finding that Lindsey Halligan, the prosecutor, was unlawfully appointed to the job. The court never ruled on Comey’s effort to dismiss the indictment on the grounds that the prosecution was  vindictive and selective.

Comey is expected to again argue that he is being unlawfully targeted for prosecution because of his protected speech and Mr. Trump’s hostility toward him. During the appearance Wednesday, Comey’s lawyer, Pat Fitzgerald, told the court that the defense plans to file a motion to dismiss the case because the prosecution is vindictive and selective.

Comey posted the photo at the center of the indictment to social media last May. But he deleted the image shortly after, writing in a subsequent post that he saw the shells, which had been laid out by someone else, while on a beach walk and assumed the phrase “86 47” was conveying a political message. Comey said did not realize some associate the numbers with violence.

A “true threat” or protected speech?
The indictment states that Comey “knowingly and willfully” made a threat to kill or harm Mr. Trump through his post of the shells on Instagram.

The Supreme Court has ruled that “true threats” are not protected by the First Amendment, and it set a high bar for what qualifies as a true threat.

“Speech needs breathing room, and the First Amendment doesn’t allow the state to assign to speech the most sinister possible meaning that it might convey out of the most paranoiac reading of its content,” Len Niehoff, a law professor at the University of Michigan, told CBS News. “We read speech generously and give it plenty of room to work. Prosecuting speech because it’s ambiguous is exactly the opposite approach that the First Amendment dictates.”

At least two Supreme Court cases are relevant to Comey’s case. The first, Watts v. United States, was decided in 1969 and involved a remark protester Robert Watts made during a gathering about police brutality three years earlier, in which he stated, “If they ever make me carry a rifle the first man I want to get in my sights is LBJ,” a reference to then-President Lyndon B. Johnson.

The high court ruled that Watts’ comment was crude political hyperbole and did not constitute a true threat under the law.

The second case, Counterman v. Colorado, was decided in 2023. The dispute involved a Colorado man who was charged under the state’s law with making threatening communications toward a local singer on Facebook.

The Supreme Court ruled that in order to show that a true threat is outside the bounds of the First Amendment, the government must demonstrate that a defendant had at least a subjective understanding of his statement’s threatening nature. To make this showing, prosecutors must prove a person “consciously disregarded a substantial risk” that his statements would be viewed as threatening.

Given the facts of Comey’s case, experts are skeptical that the Justice Department can show that Comey’s speech is not covered by the First Amendment.

“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, a true threat,” Carbone said. “And it requires in order to prove a true threat more than just provocative language. It requires a serious expression of an intent to commit unlawful violence, and I don’t see that you have that here.”

One other Supreme Court case from 2015, Elonis v. U.S., lays out what prosecutors must prove under one of the federal statutes Comey is charged with violating: transmitting a threat in interstate commerce. In that case, the high court said that it is not enough for the government to show that a reasonable person would view a statement as a threat. Instead, the law requires prosecutors to show that a defendant transmits a communication “for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat,” the Supreme Court found.

Michael Dreeben, who was a member of Comey’s defense team in the first prosecution and is a former deputy solicitor general, argued the 2015 case before the Supreme Court on behalf of the government, though the justices ended up ruling for the defendant, Anthony Elonis.

“Without even having to get to a constitutional question, the judge in this case could dismiss the charges just on the grounds that what the government has said that Comey did doesn’t fall within the criminal law,” Hessick said. “That’s one bite at the apple. The second bite at the apple is even if it falls within the law, does it violate the First Amendment?”

Others have posted “86”
Since Acting Attorney General Todd Blanche announced the indictment earlier this week, commentators have noted that prominent conservatives have also used the term “86” in reference to politicians.

In 2024, former GOP Rep. Matt Gaetz of Florida wrote on X, “we’ve now 86’d: McCarthy, McDaniel, McConnell” after former House GOP Leader Kevin McCarthy, former Republican National Committee Chair Ronna McDaniel and former Senate Republican Leader Mitch McConnell announced they were stepping down from their leadership positions.

In 2022, right-wing influencer Jack Posobiec posted “86 46,” a reference to then-President Joe Biden.

Asked about these other comments and if the Justice Department would pursue charges against others who use the phrase, Blanche said it would depend on an investigation and “all kinds of factors.”

But Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression, warned that cases like Comey’s can have a wider chilling effect.

“It sends a message not just to Comey but to everyone else that they better watch what they say about the government or they could be next,” he told CBS News. “Many people may rationally choose to self-censor rather than risk the government making an example out of them and taking away their liberty.”

Plus, Comey, as a former FBI director, deputy attorney general and federal prosecutor, has access to lawyers who have argued at the highest level of the judiciary and more resources to fight the charges — which few Americans have.

“Our democracy is based on the idea that everybody is able to openly express their political views and their opinions about the government,” Terr said. “Nobody should have to fear the full weight of the federal government coming down on them just for expressing criticism of the president. That’s antithetical to everything our democracy stands for.”