James Comey is accused of sending a coded threat to murder President Trump by posting an image of seashells on Instagram. The case against him is nearing a crucial turning point.
Comey, the former F.B.I. director fired by Trump in his first term, was indicted in April for posting a photograph of seashells arranged to form the number 8647. The Justice Department contended that “86” means “kill.” Everyone agrees that “47” refers to Trump. The four digits together, prosecutors said, amounted to a threat to kill the president.
Comey’s lawyers have asked the judge to dismiss the indictment in motions that “are now ripe for decision,” Judge Louise Wood Flanagan wrote late last month. Unless she grants one of them, the case will go to trial next year.
Judge Flanagan, who was appointed by President George W. Bush, has been hard to read. She has not scheduled oral arguments on the motions and may rule based only on the written briefs. In June, moreover, she said she would not accept friend-of-the court briefs.
That seemed odd to me, as the case presents serious free-speech issues with implications beyond the particular dispute. But some law professors who had hoped to submit briefs told me that the judge may have made a defensible choice to avoid a flood of distracting and duplicative filings.
First Amendment scholars have written that the government’s allegations about Comey’s seashell threat is problematic as a matter of language, precedent and common sense. The most common dictionary definitions of “86,” for starters, are to throw out, eject, get rid of or refuse service to.
Comey’s lawyers said that there is a fundamental problem at the heart of the case: The image of the seashells, they say, cannot amount to a threat.
In response, the government’s main argument was that a jury, rather than Judge Flanagan, should decide whether the image conveyed a true threat. A cynic might think that the administration was more interested in prolonging the prosecution than in resolving the legal questions since it will take much longer to have a jury to weigh in than letting Judge Flanagan rule.
The briefs clarified one commonly misunderstood point. The case is not about whether the seashells sought to incite violence against Trump by others. The government’s brief gestured in that direction in passing, but the laws Comey is charged with violating and the relevant precedents require something else.
The question for Judge Flanagan is whether an objective observer would understand the image of the seashells to be a serious expression of Comey’s own intent to kill the president. Only such a message would amount to a “true threat,” which is a category of speech unprotected by the First Amendment and the basis for the charges against him.
The Supreme Court has said that speech much more direct than seashell formations did not qualify as a true threat.
In 1969, it threw out a case against a draft protester charged with threatening President Lyndon B. Johnson. “If they ever make me carry a rifle,” the protester said, “the first man I want to get in my sights is L.B.J.”
The court ruled that the remark was “political hyperbole” and not a true threat because it was conditional, made at a rally and greeted by laughter.
Prosecutors could have charged Comey with inciting others to commit violence — but they did not. Incitement, like a true threat, is not protected by the First Amendment. But the Supreme Court has defined incitement quite narrowly. The message at issue, the court has said, must be both intended to produce imminent violence or lawlessness and also likely to do so.
In 1969, in Brandenburg v. Ohio, the Supreme Court unanimously overturned the conviction of a leader of a Ku Klux Klan group under an Ohio statute that banned the advocacy of terrorism. The Klan leader, Clarence Brandenburg, had urged his followers at a rally to “send the Jews back to Israel” and to “bury” Black people, using a racial slur.
Because Brandenburg’s words fell short of calling for immediate violence in a setting where such violence was likely, the Supreme Court ruled that he could not be prosecuted for incitement.
Trump has been the beneficiary of that ruling. When he was running for president in 2016, he pointed to some protesters at one of his rallies and told the crowd to “get ’em out of here.”
The protesters, who said they were then viciously assaulted by others in the crowd, sued Trump for inciting a riot. Trump won the suit. A federal appeals court, referring to Brandenburg, ruled that his exhortation was protected by the First Amendment.
In the Comey case, prosecutors said they would demonstrate to the jury that “86” was “a term of art in the context of organized crime.”
John Gleeson, a former federal judge and mafia prosecutor, submitted a sworn statement debunking that idea based on his many hundreds of hours of listening to the surreptitiously recorded conversations of gangsters and to the accounts of cooperating witnesses.
He made clear that he was not submitting the statement as a professional courtesy to a fellow former prosecutor. He and Comey had butted heads while serving in different U.S. attorney’s office in New York City, he said. “Mr. Comey and I are not friends and never were,” Gleeson wrote.
But Gleeson scoffed at the government’s theory. A mobster might “whack” or “clip” someone, he wrote.
But “the claim that ’86’ is mafia jargon for ‘kill’ is preposterous,” Gleeson wrote. “If it weren’t made in the context of seeking to deprive a man of his liberty, it would be laughable.”
An Update on Jack Smith’s Report
A couple of weeks ago, I wrote about the 11th Circuit’s puzzling postponements of arguments over the release of a report from Jack Smith, the special counsel who tried to prosecute Trump on charges that he had mishandled classified documents. The appeals court first scheduled the arguments for June 2026 and then repeatedly postponed them, tentatively settling on the week of Jan. 18, 2027.
Last week, the court had a change of heart, setting the case down for argument on Nov. 2. As night follows day, a lawyer for Trump on Monday asked the appeals court to put the argument off again — asking that it once again be pushed into next year.
“Given President Trump’s extensive commitments, including travel and other obligations in advance of the Nov. 3, 2026, federal midterm elections, counsel will not have sufficient opportunity to meaningfully confer with her client,” the lawyer, Kendra Wharton, wrote.
In a response filed Tuesday, two watchdog groups seeking the report — the Knight First Amendment Institute at Columbia University and American Oversight — urged the appeals court to get on with it.
“Time is of the essence in this appeal,” they wrote. “Appellants seek public access to a document of singular historic importance — one that concerns the character of the nation’s highest elected official.”
Other Things Worth Knowing About
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Judge James Ho of the Fifth Circuit, a Trump appointee often mentioned as a potential Supreme Court nominee and sometimes accused of angling for a promotion, used a concurring opinion in a minor case that tangentially involved criticism of a magistrate judge to muse about the impossibility of refuting the accusation that he is auditioning. “No one has the power to look into another man’s heart and ascertain his actual motivations or ambitions,” he wrote. “So the accusation of auditioning is indeed irrefutable. Certain actions may seem like auditioning to some, but to others, it’s simply doing the job as the judge best sees fit.”
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A federal judge in Florida dismissed criminal charges against a noncitizen who was accused of voting in a federal election in 2020, ruling that Congress had been powerless to enact the 1996 law requiring voters to be citizens under which she was prosecuted. It’s not as crazy as it sounds. For starters, the judge, David Leibowitz, had appointed Paul Clement, a former solicitor general, to explore the question as a friend of the court. Clement and a colleague, Chadwick Harper, concluded that the law was “likely unconstitutional.”
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Jack Goldsmith, a law professor at Harvard and a former Justice Department official in the Bush administration, assessed Justice Samuel Alito’s new book, “So Ordered,” in The Atlantic. “His results-focused jurisprudence, his culture-warrior profile, and his scorn for fainthearted conservative jurists mesh with the Trump-inspired movement,” Goldsmith wrote of Alito.
Mailbag
Firing the President
How exactly is the 25th Amendment invoked? — Sheila Boyd
The 25th Amendment, which was adopted in 1967, includes a provision setting out an elaborate method of removing the president.It has never been tested.
The process contemplated by the provision starts when the vice president and a majority of the cabinet notify Congress that “the president is unable to discharge the powers and duties of his office.” Once that happens, “the vice president shall immediately assume the powers and duties of the office as acting president.”
But that may only be the beginning of the process. Should the ousted president object, removal requires a two-thirds vote of both the House and the Senate. That is a tougher requirement than removal by impeachment, which requires a majority in the House and a two-thirds vote of the Senate.
I would love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
Closing Argument
Alito Says He Intends to Stay Put Even if Senate Flips
Justice Alito rejected speculation that he might step down if Democrats retake the Senate in next month’s election. A retirement in November, should the Democrats win, would allow Trump to name his successor while Republicans remain in control in the lame-duck session.
“I intend to stick around through this term,” he told Greg Stohr of Bloomberg News in an interview conducted last week and published Tuesday. “I made that decision many months ago.”
The Supreme Court’s term started Monday and will run through late June or early July.
In an interview with Jan Crawford of CBS News, Justice Alito, who is 76, said that retirement is “something I think that somebody at my age has to think about every term.”
Those interviews and several other recent ones were part of the justice’s efforts to promote his new book, and they mostly covered familiar territory. But one surprise in the interview with CBS News concerned Obergefell v. Hodges, the 2015 decision establishing a constitutional right to same-sex marriage. He indicated that it is not in peril.
Justice Alito dissented in the case and later indicated that it ought to be reconsidered. But his 2022 majority opinion in Dobbs v. Jackson Women’s Health Organization took pains to say that eliminating the constitutional right to abortion the court was not putting Obergefell at risk even though it shared a methodology with Roe v. Wade.
He went even further in the interview.
“I did not think that there was any realistic prospect that it would be overruled because of the passage of time and the developments in the country,” he explained to Crawford.
“One of the important factors we take into account in deciding whether we should re-examine a past decision is the degree to which there has been reliance on the decision,” he added. It would certainly seem that the many couples who built their lives around marriages that they were only able to enter into as a result of the ruling relied on it.
Justice Anthony Kennedy, who wrote the majority opinion in Obergefell and retired in 2018, made this point when I interviewed him last year.
“A powerful argument against” overruling the decision, he said, was the “tremendous amount of reliance” that same-sex couples and their families had placed on the decision.
Please send me your comments on seashells, the 25th Amendment, lame-duck sessions or anything else at [email protected]. See you next week. — Adam
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