WASHINGTON, April 29, 2026 —
Former FBI Director James Comey has been indicted for a second time by the Justice Department on charges of threatening President Trump — this time in a new case filed after a federal judge dismissed the original 2025 indictment on the grounds that the prosecutor who brought it was improperly appointed. The re-indictment, confirmed Tuesday, centers on a social media post Comey made showing seashells arranged in a pattern that read “86 47” — a phrase the government interprets as a call to kill the 47th president of the United States.
The new case eliminates the procedural defect that sank the first one. Whether it survives the same First Amendment scrutiny that Comey’s legal team will argue it deserves is the question now before the federal courts.
What the Post Said — and What the Government Says It Means
The social media post at the center of the case showed a photograph of seashells arranged on a beach spelling out “86 47.” Comey posted the image in March 2025 on Instagram. He deleted it hours later and said publicly that he had not known “86” was used as slang for killing someone — that he understood it only as a term meaning to get rid of something or cancel it, as in restaurant slang for a sold-out item.
The Justice Department did not accept that explanation. Federal prosecutors argued that the phrase “86 47” — posted by a former senior law enforcement official during a period of intense political conflict between the Trump administration and its critics — constituted a true threat against the president’s life, regardless of the poster’s stated intent. They charged Comey under federal statutes prohibiting threats against the president.
The first indictment was dismissed in March 2026 by a federal judge who ruled that the prosecutor who filed the case had been improperly appointed under the Federal Vacancies Reform Act — a procedural defect that voided the charging instrument but did not address the merits of the underlying allegation. The Justice Department corrected the appointment issue and refiled within weeks.
Why the First Case Fell Apart — and How the Second One Is Different
| Issue | First Indictment (2025) | Second Indictment (2026) |
|---|---|---|
| Prosecutor appointment | Ruled improper under Federal Vacancies Reform Act | Corrected — properly appointed prosecutor |
| Underlying charge | Threatening the president — 18 U.S.C. § 871 | Same charge |
| Case dismissed on merits | No — dismissed on procedural grounds only | N/A — new case |
| First Amendment defense | Not yet litigated | Central issue going forward |
| Comey’s stated intent | Did not know “86” meant kill | Same defense expected |
| Political context | Trump DOJ pursuing critics | Same context |
The dismissal of the first case was entirely procedural — the judge made no finding about whether the post constituted a genuine threat or whether Comey’s First Amendment rights protected it. That question was never answered. It is now the central question in the second case.
The First Amendment Question That Will Define the Case
Federal law prohibits threatening the president. But the Constitution protects political speech, including speech that is hostile, inflammatory, and offensive toward political figures. The Supreme Court has drawn the line at what it calls “true threats” — statements where the speaker means to communicate a serious intent to commit violence. Ambiguous statements, political hyperbole, and statements made without intent to threaten have repeatedly been held to fall within First Amendment protection.
Comey’s defense will almost certainly argue that a photograph of beach seashells posted on Instagram by a 64-year-old former law enforcement official does not constitute a true threat by any standard the courts have recognized. The government will argue that the identity of the poster — a man who ran the FBI during one of the most contentious periods in modern political history, who was fired by Trump, and who has been a constant critic of the administration — provides context that makes the phrase “86 47” something more than an innocent arrangement of numbers.
Legal experts who spoke to multiple outlets Tuesday described the case as an aggressive application of the presidential threat statute to political speech. Several noted that prosecutions under that statute have historically been reserved for statements with specificity — naming a place, a time, a method — rather than ambiguous symbolic phrases that require inference to constitute a threat.
Comey’s Response — and the Political Context
Comey has not yet publicly commented on the new indictment. His legal team is expected to file a motion to dismiss on First Amendment grounds — the same motion that was being prepared when the first case was dismissed on procedural grounds before that argument could be heard.
The re-indictment comes in the same week that Comey’s former boss, former President Barack Obama, made his first public appearance of the year at a Democratic fundraiser in Chicago — an appearance that drew significant media attention and heightened the political temperature around cases involving Obama-era officials.
The Trump Justice Department has been explicit about its intention to pursue legal cases against officials it accuses of weaponizing federal agencies against the president during his first term and the intervening years. Comey’s case sits alongside prosecutions of other former officials in what critics describe as a systematic use of federal law enforcement against political opponents, and what the administration describes as long-overdue accountability for abuse of power.
Whether the courts treat it as the former or the latter will be determined in the months ahead — assuming the Second Amendment defense does not succeed first.
