James Comey indicted again, this time over seashell Instagram post
Comey faces two charges, including Threats Against the President and Successors.
A federal grand jury in North Carolina has indicted former FBI Director James Comey over a controversial Instagram post from last year that President Donald Trump and members of his administration claimed was a threat against the president.
Renewing efforts to prosecute one of Trump's longtime adversaries, Department of Justice prosecutors brought the case after a judge last year threw out an indictment against Comey on unrelated charges.
The new indictment centers on a controversy that erupted nearly a year ago when Comey, in a since-deleted Instagram post, shared a picture showing the numbers "86 47" written in seashells on the beach with the caption "Cool shell formation on my beach walk." Citing the slang meaning of "86" as to "nix" or "get rid" of something, allies of the president allege that the post was a veiled threat against Trump, who is the 47th president.
As outlined in the short, three-page indictment, Comey faces one charge of threats against the president and successors, and one charge of transmitting a threat in interstate commerce.
Prosecutors in the indictment say the post constitutes a threat that any "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."
"Nothing has changed with me," Comey posted online in response to the indictment, echoing what he said after the previous indictment was thrown out last year. "I'm still innocent, I'm still not afraid and I still believe in the independent federal judiciary so let's go."
"But it's really important that all of us remember this is not who we are as a country, this is not how the Department of Justice is supposed to be and the good news is we get closer every day to restoring those values," he added. "Keep the faith."
CNN was first to report an indictment had been handed up.
At a press conference announcing the charges, acting Attorney General Todd Blanche argued that Comey's post crossed the line between First Amendment-protected speech and speech that warrants prosecution.
"It's not a very difficult line to look at, and it's not, in my mind, a difficult line for one to cross over, one way or the other," Blanche said. "We cannot, you are not allowed to threaten the President of the United States of America. That's not my decision. That's Congress's decision, and a statute that they passed that we charge multiple times a year."
Asked about the evidence in the case beyond the social media post itself, Blanche claimed there's been a "tremendous amount of investigation" but did not elaborate on what the evidence showed.
"And how do you prove intent? In any case, you prove intent with witnesses, with documents, with the defendant himself, to the extent, to the extent it's appropriate. And that's how we'll prove intent in this case," Blanche said.
Blanche repeatedly stood by the decision to seek the indictment, saying the government would "never tolerate" and "prosecute anyone who violates federal law, regardless of title or status."
Others, however, have used the "86" nomenclature, including Democratic Michigan Gov. Gretchen Whitmer who appeared during a 2020 television interview with a small figurine of the numbers "86 45" on a table behind her, and conservative commentator Jack Posobiec, who posted a Tweet with "86 46" during Joe Biden's presidency and recently interviewed Blanche at the Conservative Political Action Conference.
Prosecutors will likely face a high legal bar to prove that the Instagram post constituted a "true threat," which the Supreme Court in 2023 found required showing an individual understood their message would be perceived as threatening. With the phrase "86 47" increasingly adopted by protesters of the Trump administration, the case could carry sweeping implications for the First Amendment.
When asked about the post last year, Trump suggested that Comey should be prosecuted over the post, which Trump alleged was a call "for the assassination of the president."
"He knew exactly what that meant. A child knows what that meant. If you're the FBI director and you don't know what that meant, that meant assassination. And it says it loud and clear," Trump told Fox News last year.
At the time, Trump said he would leave a decision about charging Comey to then-Attorney General Pam Bondi, though he insisted that Comey was a "dirty cop."
"When you add his history to that ... he's a dirty cop. And if he had a clean history, I could understand if there was a leniency, but I'm going to let them make that decision," Trump said.
Following backlash over the post, Comey removed the photo from Instagram and said he was unaware that the post could be associated with violence.
"I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. I didn't realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down," Comey said on May 15.
The post drew swift criticism from the Trump administration, with White House staff describing the post "deeply concerning" and Director of National Intelligence Tulsi Gabbard calling for Comey to be imprisoned.
"James Comey in my view should be held accountable and put behind bars for this," Gabbard told Fox News.
Comey was indicted last year on unrelated charges for allegedly lying to Congress and obstruction related to his testimony before the U.S. Senate Judiciary Committee in 2020. Comey's lawyers moved to dismiss the indictment, arguing the case was politically motivated and that the grand jury never saw the charges in their entirety, and the case was ultimately dismissed over issues with the legitimacy of the prosecutor who brought the case.
"I know that Donald Trump will probably come after me again, and my attitude is going to be the same," Comey said in a video posted to social media after the previous indictment was thrown out in November. "I'm innocent. I am not afraid, and I believe in an independent federal judiciary -- the gift from our founders that protects us from a would-be tyrant."
The new indictment comes as the Department of Justice in recent weeks has ramped up investigations of some of Trump's perceived political foes under Acting Attorney General Todd Blanche, who is heading up the Justice Department following Trump's ouster of Pam Bondi.
Earlier this month, the Department of Justice removed a top career prosecutor from a controversial investigation in Florida after sources told ABC News that she had expressed concerns about a rushed effort to bring criminal charges against former CIA Director John Brennan.
Prosecutors in April also secured an indictment against the Southern Poverty Law Center -- frequently criticized by conservatives for their assessment of hate groups -- for bank fraud and money laundering offenses related to its paying of informants to infiltrate such groups. The organization has denied all wrongdoing.
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