The Department of Justice said late Tuesday that there is no serious dispute that James Comey’s Instagram post of seashells arranged as “86 47” could be understood as a threat against President Donald Trump. The filing was the government’s sharpest response yet to the former FBI Director’s bid to get the case thrown out.
Comey, who deleted the post shortly after he put it up, said he found the shells while walking on a beach in North Carolina. His lawyers have argued that the image did not amount to a true threat and that the prosecution should be dismissed, including on claims of vindictive prosecution.
The post matters because “86” is a loaded number with more than one meaning, and prosecutors are leaning on the threatening one. Merriam-Webster defines it in ways that include “to throw out,” “to get rid of” and “to refuse service to,” while Trump is the 47th president. In the government’s telling, the combination of the number and the presidential reference was enough to make the image read as a threat, even if it was not spoken aloud.
Prosecutors also said the post may have been aimed at drawing attention to a forthcoming novel about a social media personality whose words inspire his fans to attack his foes. That matters because it gives them a second theory: that the image was not an accidental beach find shared online, but a calculated post with a sharper meaning behind it. Comey’s camp rejects that reading and says the government still has not shown he intended violence.
The fight has turned into a test of how far federal law can reach into social media shorthand, and what counts as menace when the message is tucked inside a joke, a symbol or a number. The Department of Justice filed its motions late Tuesday in response to defense efforts to dismiss the case, and those papers are the most detailed explanation yet for why prosecutors believe the indictment can stand.
For Comey, the next step is simple and severe: he needs a judge to agree that the government has not cleared the legal bar for a criminal threat. For prosecutors, the burden is to persuade the court that a pair of numbers in a post about seashells was not just ambiguous, but threatening enough to carry a federal case forward.
