A photograph of seashells on a quiet beach was supposed to become the centerpiece of the government’s case against James Comey. Instead, the image may now illuminate something far more consequential: whether federal power was used to punish one of President Donald Trump’s most prominent enemies.
Comey’s attorneys have asked a federal judge to dismiss the criminal case arising from his Instagram post showing shells arranged as “86 47.” Prosecutors contend the numbers communicated a genuine threat against Trump, the nation’s 47th president. Comey’s defense says the post was political expression protected by the First Amendment—not a serious declaration of violent intent.
But the meaning of those four digits is no longer the only issue before the court.
In a series of filings, Comey’s lawyers accuse the government of pursuing him through an allegedly vindictive investigation involving electronic surveillance, questionable warrant applications and a witness whose own testimony may undermine the prosecution’s theory. Those assertions remain allegations that prosecutors will have an opportunity to contest, but they have already intensified scrutiny of an extraordinary case.
“Pat Fitzgerald cites some very bad facts re the prosecution of James Comey,” MS NOW journalist Carol Leonnig wrote, referring to Comey’s defense attorney. She highlighted allegations that Trump and administration officials pressed for an investigation even though agents had reportedly concluded the post did not represent a genuine danger.
The legal battle began with an image Comey shared after a beach walk. To prosecutors, “86 47” carried a menacing implication. To the defense, “86” was ordinary restaurant slang meaning to remove, reject or discard something—a political demand to vote Trump out, not a call for violence.
Comey removed the post within hours, explaining that he had not initially understood that some people interpreted the phrase differently. His attorneys argue that dictionaries, everyday usage and legal precedent all support a nonviolent meaning. Former federal judge and organized-crime prosecutor John Gleeson submitted a declaration saying that, in his experience, “86” carried no recognized connotation of murder.
The defense has now widened its attack.
Comey’s attorneys allege that the Secret Service conducted warrantless electronic surveillance at the request of a senior Justice Department official. Filings reportedly describe discussions about locating Comey’s phone while he traveled from North Carolina to Virginia. The government has not conceded that any surveillance was unlawful.
Comey’s team is also seeking to suppress evidence it says was obtained through misleading representations and important omissions. A separate motion asks the judge to unseal grand-jury audio, potentially exposing how prosecutors presented the case behind closed doors.
Then there is the witness identified in court documents as “Person 1.”
According to the defense, the witness was estranged from Comey, openly hostile toward him and eager to see the former FBI director prosecuted. The person allegedly acknowledged offering speculation and initially understood “86” only as restaurant terminology. That interpretation reportedly shifted after the witness listened to a Rudy Giuliani podcast discussing a darker meaning.
“A key witness hated Comey, openly wanted him jailed … and yet supported the defense theory of the case—until the person found a Rudy Giuliani podcast convincing,” legal journalist Adam Klasfeld summarized.
That history could prove damaging if the case reaches a jury. It also feeds Comey’s argument that investigators were searching for evidence to support a predetermined conclusion.
His attorneys further allege selective prosecution. The phrase “86 47” has appeared on political signs and merchandise across the country, they argue, yet Comey alone was singled out for criminal charges. A Washington judge has separately treated similar political use of the phrase as constitutionally protected expression.
Proving vindictive or selective prosecution is notoriously difficult. Courts generally give the Justice Department broad discretion and require persuasive evidence that a defendant was targeted for an improper reason. But Comey’s history with Trump gives the dispute an unusually combustible backdrop.
Trump fired Comey as FBI director in 2017 and has attacked him publicly for years. A previous prosecution accusing Comey of lying to Congress collapsed after a judge ruled that the prosecutor who obtained the indictment had been unlawfully appointed. The judge never reached Comey’s claim that the case was driven by political retaliation.
Now Judge Louise Wood Flanagan, appointed by President George W. Bush, must decide whether the second prosecution can survive. Comey faces two federal counts related to the alleged transmission of a threat, according to The Associated Press. Constitutional scholars previously told Reuters that the government could struggle to overcome First Amendment protections.
What began as an argument over four characters in the sand has become a test of something much larger. The question confronting the court is no longer merely what “86 47” meant.
It is whether the government discovered a crime—or constructed one around a president’s enemy.
