By Robert Simels
Originally published in amNewYork on
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Robert Simels examines the second federal prosecution of former FBI Director James Comey. After an earlier case was thrown out, Comey was indicted on April 28 over an Instagram photo of the numbers "86/47" arranged in seashells on a beach, captioned as a cool shell formation. Prosecutors say the image was a threat against the President, a charge that carries up to 10 years in prison.
Simels notes that acting Attorney General Todd Blanche conceded on television that the phrase is widely used, including on products sold online, and that not everyone who uses it should be prosecuted. Simels also recalls that in restaurant slang, "86" means a dish has run out.
The core of his argument is legal. The Supreme Court has narrowed what counts as a true threat over decades: in Watts, a case arising from a 1966 protest remark about President Johnson, the Court treated the words as political speech; in Elonis (2015), the Court held that the speaker's state of mind matters; and in Counterman v. Colorado (2023), it held that prosecutors must at least show the speaker consciously disregarded a substantial risk that the words would be seen as threatening. Simels argues that the Comey indictment does not allege that mental state and instead tracks the older, lower standard, so it should be dismissed and the prosecutors who approved it should face sanctions.
He contrasts the seashell case with a long list of the President's own statements about political opponents, and he ends with a warning to beachgoers about what they write in the sand.
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This page is a summary prepared for robertsimels.com. The full commentary was published by amNewYork and remains on amNewYork's site.
Robert Simels. Robert Simels hosts the podcast Injustice for All and serves as a consultant on criminal justice matters. He is no longer practicing law.
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