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James Comey has been indicted for posting a photograph of seashells on Instagram. That sentence requires no embellishment. The former FBI director — the man who investigated Russian interference in the 2016 election, who was fired by Donald Trump in the first term, who has since occupied a permanent place in the administration’s catalogue of enemies — now faces two federal charges carrying a maximum of 10 years each in prison, because he briefly shared an image of shells on a North Carolina beach arranged in the pattern 86 47.
The government’s position, announced at a Tuesday press conference by FBI Director Kash Patel, is that “86” — slang for eject or remove — combined with “47,” referring to the 47th president, constitutes an incitement to violence against Trump. “James Comey disgracefully encouraged a threat on President Trump’s life and posted it on Instagram for the world to see,” Patel said. As the former director of the FBI, Patel added, Comey “knew full well the attention and consequences of making such a post.”
Comey’s account of the same event is considerably different. He said he saw the shells, shared the image because he assumed it carried a political message, and deleted it when people explained what the number combination allegedly meant. “I didn’t realise some folks associate those numbers with violence,” he said. “It never occurred to me but I oppose violence of any kind so I took the post down.” On Tuesday, after the indictment was announced, he responded with the composure of a man who has been here before: “I’m still innocent, I’m still not afraid, and I still believe in the independent federal judiciary.”
This is, in fact, the second time the Justice Department has indicted Comey. The first attempt, in late September, charged him with lying to Congress and obstructing a congressional proceeding.
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That indictment was dismissed in November by US District Judge Cameron Currie, who found that the prosecutor — Lindsey Halligan, a former White House aide who had never prosecuted a criminal case before her appointment — had been invalidly appointed and lacked the authority to present charges to the grand jury. The judge left the door open for the government to try again. The government has tried again.
Acting Attorney General Todd Blanche described the new charges as a matter of grave national importance. “Threatening the life of the President of the United States is a grave violation of our nation’s laws,” Blanche said in a statement. “The grand jury returned an indictment alleging James Comey did just that.” The charges — making a threat against the president and transmitting a threat in interstate commerce — were filed in the Eastern District of North Carolina, where the shells were reportedly collected.
Trump’s own assessment of the original Instagram post was characteristically direct. “A child knows what that meant,” he said.
Legal experts offered a sharply different characterisation of what the government has assembled. Michael Gerhardt, a constitutional law expert at the University of North Carolina School of Law, called the indictment “very thin” and said Comey’s post would likely be viewed by courts as protected speech under the First Amendment.
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Jimmy Gurulé, a former federal prosecutor and former assistant attorney general appointed by George W Bush, now a professor at Notre Dame Law School, went further. “The DOJ will not be able to prove beyond a reasonable doubt that James Comey had the intent to threaten or harm President Trump,” Gurulé said. “The indictment is a transparent attempt to intimidate one of the President’s perceived political enemies. It is an embarrassment to the American criminal justice system.”
The charges landed on a day that carried its own irony. A separate judge ruled Tuesday that Maurene Comey — James Comey’s daughter and a former federal prosecutor fired by the Trump administration — can proceed with her legal challenge to that termination.
Trump has been calling for Comey’s prosecution for years. The first indictment collapsed on a procedural technicality before it reached trial. The second is built on a photograph of shells on a beach that Comey says he shared without knowing what anyone thought the numbers meant, and deleted as soon as he found out.
The maximum sentence, if convicted on both counts, is 20 years. For posting a picture of seashells.
