Politics
DOJ Charges Comey Over Seashell Photo — Legal Experts Say It Won’t Hold
By Mike Harper · April 29, 2026
The Justice Department indicted James Comey on Tuesday for posting a picture of seashells on a North Carolina beach. Legal experts say the case is almost certainly going to fail — and the DOJ filed it anyway.
The two-count indictment, unsealed Tuesday and filed in the U.S. District Court for the Eastern District of North Carolina, charges the former FBI director with threatening the president and transmitting a threat in interstate commerce. The basis: a May 2025 Instagram post in which Comey shared a beach photo captioned “Cool shell formation on my beach walk.” The shells spelled out “86 47.” In slang, 86 can mean to get rid of something. Trump is the 47th president.
Comey said he didn’t realize the association when he posted it. He deleted the post and said he “opposes violence of any kind.” He was investigated by the Secret Service, sat for a lengthy interview, and no charges were brought — until now.
Acting Attorney General Todd Blanche announced the indictment at a press conference, flanked by FBI Director Kash Patel.
“Threatening the life of the president of the United States will never be tolerated by the Department of Justice,” Blanche said.
Comey responded the same day in a video posted online. “I’m still innocent, I’m still not afraid, and I still believe in the independent federal judiciary, so let’s go.”
The legal problem for the government is significant. In 2023, the Supreme Court ruled in Counterman v. Colorado that a true threat — the standard required for a conviction — requires proof that the speaker “consciously disregarded a substantial risk” that their communication would be read as threatening. It is not enough that a reasonable observer might find it threatening. The speaker has to have known, or recklessly ignored, that risk.
Applying that standard to a beach photo captioned “Cool shell formation on my beach walk” — posted by someone who said he didn’t know the numbers had a threatening association — is a very high bar for the government to clear.
Michael Moore, former U.S. Attorney for the Middle District of Georgia under President Obama, was direct about the challenge.
“This is not Comey saying, ‘I am going to kill him,’” Moore told CNN. “A picture of seashells spelling 86 is unlikely to meet that bar, given the various meanings the term has.”
The asymmetry of enforcement is the detail that makes this case politically fraught regardless of its legal merits. Conservative commentator Jack Posobiec posted “86 46” about President Biden during his presidency — the same slang applied to the same logic. He was never investigated. Michigan Governor Gretchen Whitmer appeared on national television in 2020 with a small figurine displaying “86 45” visible in the background. No charges followed.
This is the second indictment of Comey under the Trump administration. The first, filed in the fall, charged him with making false statements to Congress and obstruction. A federal judge dismissed that case after ruling that the appointment of the prosecutor who brought it was legally defective. Charges against several other Trump targets — including New York Attorney General Letitia James — were dropped under similar circumstances.
The indictment comes three days after the WHCD shooting in Washington, in which Cole Tomas Allen charged a presidential event with a shotgun. The Trump administration and its allies have argued that political rhetoric from Democrats and media figures has contributed to an atmosphere of violence — a framing that gives the Comey prosecution a political context regardless of its legal substance.
Comey’s arraignment date has not been announced. The case will be heard in the Eastern District of North Carolina, where he has a beach house and where the photo was taken.