Whatever Evidence the DOJ Has Against James Comey, It Cannot Transform '86 47' Into a Death Threat |
Department of Justice
Whatever Evidence the DOJ Has Against James Comey, It Cannot Transform '86 47' Into a Death Threat
Acting Attorney General Todd Blanche implausibly claims prosecutors can prove Comey "knowingly and willfully" threatened to murder the president.
Jacob Sullum | 5.6.2026 4:30 PM
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Acting Attorney General Todd Blanche (Illustration: Adani Samat, Midjourney. Photo: Mattie Neretin /CNP/Mega/RSSIL/Newscom)
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........