(Ben Sellers, Headline USA) It may have come as little surprise that the Justice Department was seeking for a third time to hold former FBI Director James Comey accountable for his long history of seditious conduct.
An Judge Cameron McGowan Currie, a Bill Clinton appointee, dropped criminal cases against Comey and New York Attorney General Letitia James last year on technicalities, claiming the lead prosecutor, Lindsey Halligan, had been improperly appointed as a U.S. Attorney. A grand jury subsequently refused to re-indict Comey after the charges were re-filed.
But following last week’s announcement of a new grand-jury indictment on different charges, some were left scratching their heads as to whether the case would hold up in either the court of public opinion or the court of law.
Comey was charged with making a threat against President Donald Trump after he posted on Instagram a picture of a shell formation spelling out the slogan “86 47” while vacationing at his beach house on North Carolina’s Emerald Isle.
“This is not going anywhere. This is clearly not a punishable threat,” Eugene Volokh, a senior fellow at Stanford University’s Hoover Institution who specializes in First Amendment law, told CNN.
Comey’s defenders swiftly rushed to decry the case as an infringement of his free-speech rights.
Many media outlets, such as NBC News, carped on the fact that the term “86” is commonly used in the restaurant business to indicate a menu item that needs to be scratched.
Meanwhile, Comey allies like left-wing blogger Aaron Rupar mocked the two-page indictment as “laughably thin.”
the new 2-page James Comey indictment is laughably thin. How in God's name did a grand jury vote to bring charges here? https://t.co/4eyvwy7yrK
— Aaron Rupar (@atrupar) April 28, 2026
Even libertarian-leaning Trump supporters, like influential podcaster Joe Rogan and constitutional law expert Jonathan Turley weighed in to question its wisdom.
Both warned, in Rogan’s words, that it “sets a crazy precedent” for prosecuting protected speech.
Joe Rogan called the Trump administration’s indictment of James Comey “nuts” and “silly,” claiming that it “sets a crazy precedent” on the First Amendment.
Comey was charged with two counts of alleging threats against the President for displaying “86 47” in a quickly-deleted… pic.twitter.com/OfQsinbMdK
— AF Post (@AFpost) May 3, 2026
“I would prefer to crawl into one of Comey’s conversant shells than write a column supporting him,” Turley wrote.
“However, here we are,” he added. “The fact is that I believe that this indictment is facially unconstitutional absent some unknown new facts.”
As it turns out, Turley’s final caveat may be an important one.
In addition to a charge stemming from the threat itself, Comey was charged with a second offence under U.S. Code 8, section 875(c), which pertains to interstate commerce.
As some astute legal observers pointed out, the now-deleted shell picture was, in fact, one in a series of three posts that were promoting Comey’s third fiction book, FDR Drive.
The picture that preceded the shells showed him lounging on the beach reading the book, and the one after it provided a screenshot of a promotional blurb from Publishers Weekly.
The book’s protagonist, a U.S. attorney named Carmen Garcia, believes “far-right media personality” Samuel Buchanan “went far beyond the protection of the First Amendment when he singled out his enemies by name and suggested ‘something should be done’ about them,” says the blurb. “His fans have obliged, killing or grievously injuring some of his foes.”
It goes on to describe Comey’s thinly veiled plot as being “ripped-from-the-headlines.”
But according to legal analyst and influencer David Freiheit (aka “Viva Frei”), Comey was indirectly dog-whistling to his own supporters that they should heed Buchanan’s clarion call.
Too many people are either ignorant of the facts, or being obtuse as relates to Comey’s “8647” (in shells!) Instagram post.
It was not a simple “one-off” post. Faulty premise and factually incorrect.
So everyone comparing it to Jack Posobiec’s 2022 tweet of “8646” is not… pic.twitter.com/eAv1ysqInw
— Viva Frei (@thevivafrei) April 29, 2026
“All of the elements are there to eliminate any ambiguity as to what [Comey] meant — sandwiching his 8647 in shells in between a picture of him reading his book, and a summary of his book — which has to do with calling out enemies by name, suggesting something should be done to them, and his fans obliging,” wrote Freiheit, a former Canadian lawyer.
He criticized the “bare bones” indictment for lacking the full details of the case, and for the delay in getting it to a grand jury.
“If I were drafting it, I would have included these details,” Freiheit wrote. “But, according to some American attorneys, the indictment need not include every single allegation in it, just the essential.”
Nonetheless, he said that those playing coy about the substance of the charges were “either ignorant or dishonest. Either way, their opinions should be disregarded.”
Freiheit also disarmed a counterargument that a similar statement (“8646”) was made in 2022 by Human Events editor Jack Posobiec against Joe Biden, noting that the context was paramount in making the case for a legitimate threat.
Meanwhile, Posobiec himself also picked up on the sequencing of the posts, suggesting that the profits from Comey’s book may bolster the second charge.
"Under federal law, you cannot derive proceeds from a crime. Comey made money by selling a novel about political assassinations. That's why he made this inciting comment. To sell books. That's the 2nd count of the indictment"pic.twitter.com/akdINO1Q52
— Jack Posobiec (@JackPosobiec) April 29, 2026
Others pointed to Comey’s admission that the post was problematic and subsequent decision to delete it as an acknowledgement of the threat’s severity.
.@Comey indicted 18 USC 871 (a)
Threats against the President
"…depicted seashells arranged in a pattern making out 8647….a serious expression of an intent to do harm to the President…
NOTE: Comey's decision to later delete the Instagram post could be interpreted as… pic.twitter.com/Uj7NnaaPBO
— Catherine Herridge (@C__Herridge) April 28, 2026
And likewise, his decision to wage a PR campaign over the controversy, even joking about it with late-night host Stephen Colbert, may be used to prove that he was aware that the term “86” had deadly connotations beyond its usage in the food-service industry.
Comey literally admits that he knew the meaning of "86" when he made his instagram post. pic.twitter.com/uGFnGpoX5I
— Praying Medic (@prayingmedic) April 29, 2026
Jay Town, a former U.S. Attorney and curreny legal analyst for Newsmax, laid out the full case in detail with an X thread that explained the legal standard the court will apply.
Ironically, it is likely to boil down to the same thing that Comey used to clear Hillary Clinton of her e-mail scandal: intent.
“If Comey was aware (or should have been) that there was ANY possible interpretation by reasonable people that his post would constitute a threat, but posted anyway, then that is a reckless disregard of that threat,” Town wrote.
If Comey was aware (or should have been) that there was ANY possible interpretation by reasonable people that his post would constitute a threat, but posted anyway, then that is a reckless disregard of that threat.
This then passes the Counterman "true threats" analysis. The 1A… pic.twitter.com/pUxZsWtsBe
— Jay Town (@JayTownAlabama) May 3, 2026
