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Could former FBI director James Comey actually be convicted for taking a photograph of seashells that federal prosecutors claim constitutes a threat to President Donald Trump? Legal experts say the U.S. Justice Department's case against Comey faces at least two major hurdles: (1) The free-speech protections of the First Amendment; (2) Statutory requirements that likely will be difficult to prove.
That does not include the fact Trump has publicly called for the prosecution of Comey and other perceived political enemies, which could make the Comey case an unlawful vindictive or selective prosecution.
To the layperson's ears, the notion that taking an image of seashells on a beach and posting it to social media could lead to criminal charges likely sounds . . . well, absurd, nuts, loony. It's all of those things, but with a president who has no distinguishable regard for the rule of law -- and a justice department he has filled with suck-ups who are loyal to him, but not necessarily the Constitution -- most anything can happen. At a hearing yesterday after Comey had self-surrendered, his attorneys said part of their strategy will be to seek dismissal of the case on vindictive-prosecution grounds, noting that Trump has made it clear he wants to see Comey punished.
It should be comforting to our mythical layperson that a prominent legal expert yesterday agreed with them that the case is a non-starter. From a report at CNN:
“This is not going anywhere. This is clearly not a punishable threat,” said Eugene Volokh, a senior fellow at the Hoover Institution at Stanford University who specializes in First Amendment law.
With all of that in mind, let's examine issues that likely will take center stage when the Comey trial begins. Fox News reports under the headline "Legal experts warn Comey '86 47' indictment faces First Amendment hurdles." Fox adds this subheading: "Charges under 18 U.S.C., Sec. 871 require proof of intent, and Comey's public explanation could complicate matters for prosecutors." Morgan Phillips writes:
Legal questions are emerging over whether charges against former FBI Director James Comey could withstand a First Amendment challenge as he is indicted for a social media post allegedly tied to threats against President Donald Trump.
Comey faces charges under 18 U.S.C. § 871, which criminalizes threats against the president, and 18 U.S.C. § 875(c), which covers interstate communications containing threats to harm others.
George Washington University law professor Jonathan Turley told Fox News Digital just before the indictment was released that, if the case is based solely on the widely circulated image posted by Comey, it could face steep constitutional hurdles.
"If Comey is charged for the shell picture, it would face a monumental challenge under the First Amendment," Turley said. "In my view, the image itself is clearly protected speech. Absent some other unknown facts or elements, it would be unlikely to survive a threshold constitutional challenge."
The pertinent statutory language could provide more hurdles for prosecutors, Phillips writes:
Both statutes require prosecutors to prove not only that a statement constituted a "true threat," but that it was made knowingly and with intent, standards that legal analysts say could prove difficult to meet based on publicly available information.
The indictment was filed Tuesday in the Eastern District of North Carolina, where Comey allegedly posted the image of seashells forming the numbers "86 47" during a beach walk.
Others pushed back on the idea that the case raises significant First Amendment concerns, arguing that threats against a sitting president fall squarely outside protected speech.
"The third assassination attempt against President Trump on Saturday made this crystal clear: The Justice Department must prosecute those who threaten to assassinate the president," said Mike Davis, founder of the Article III Project.
"No one has a First Amendment right to do this. No one is above the law, especially not a former director of the FBI who should know better. A jury of James Comey’s peers will decide his fate."
Mike Davis seems to be overlooking several important points:
(1) It's questionable whether the incident on Saturday at the White House Correspondents Dinner was an assassination attempt. Evidence indicates shots were fired in the vicinity of the Washington Hilton ballroom, but it is not clear who fired them. There seems to be no evidence so far that suspect Cole Tomas Allen fired a shot in Trump's direction. Even if one considers it an assassination attempt, how does that correlate to Comey's vacation activities on a North Carolina beach almost one year earlier?
(2) How did Comey's photo of shells on a beach constitute a threat to assassinate the president? Davis didn't, and probably couldn't, say.
(3) Davis says, "No one has a First Amendment right to do THIS." To do what? Comey has no right to photograph shells on a beach and post the images to social media. Does Davis expect to be taken seriously?
Like a lot of folks on the political right, Davis seems to be assuming facts that aren't present. As Eugene Volokh says, "This is clearly not a punishable threat." I'll take his word for it.
Documents filed in the case indicate prosecutors will encourage jurors to find intent by essentially reading Comey's mind. That, of course, cannot be done, and it certainly can't prove Comey's guilt "beyond a reasonable doubt." From the Fox News report:
Prosecutors allege that the post would be interpreted by a "reasonable recipient familiar with the circumstances" as a serious expression of intent to harm the president, signaling they intend to rely heavily on context surrounding the message rather than explicit language alone.
The U.S. attorney for the Eastern District of North Carolina, W. Ellis Boyle, will oversee the case. Boyle was appointed in 2025 and sworn in by his father, a longtime federal judge in the district, after being selected for the role by then-Attorney General Pam Bondi.
The indictment marks the second time Comey has been charged during the second Trump administration.
In 2025, he was indicted on charges of making false statements to Congress and obstructing a congressional proceeding tied to his testimony in the FBI’s Russia probe. That case was later dismissed after a federal judge ruled the prosecutor in the case had been unlawfully appointed.
Comey, who served as FBI director from 2013 to 2017, has long been a polarizing figure in U.S. politics, drawing criticism from both parties over his handling of the Clinton email investigation and the FBI’s probe into Russian interference in the 2016 election and potential links between Trump’s campaign and Moscow.
He was fired by Trump in 2017 amid escalating tensions tied in part to the Russia investigation.
The current charges stem from a social media post in which Comey shared an image of seashells arranged to form the numbers "86 47," which some critics interpreted as a coded threat against Trump. The post drew swift backlash and prompted an investigation.
That last paragraph points to all kinds of potential problems for the prosecution. The interpretations of "some critics" might matter in news coverage, but they are not likely to fly in a court of law. Prosecutors might think they can build a case around a "coded threat," but how can they prove that Comey knew of such a code? How can they prove that Comey "knowingly" and "with intent" issued a "true threat"? That seems like an almost impossible, task.
Donald Trump might achieve his goal of forcing Comey into court. But it's hard to see how that possibly can result in a guilty verdict. In fact, it might not even result in a trial.
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