WASHINGTON — The Department of Justice is defending its prosecution of former FBI Director James Comey, saying "there is no serious dispute" that a social media post of seashells he made last year could be understood as a threat against President Donald Trump.
Prosecutors also called into question Comey's account that he had found the seashells in the numerical arrangement of “86 47” while walking on a beach in North Carolina and suggested that his May 2025 post on Instagram was an effort to generate attention for a forthcoming novel about a social media personality whose words inspire his fans to attack his foes.
The arguments in motions late Tuesday represent the government's most detailed explanation of its indictment and were filed in response to wide-ranging defense efforts to dismiss the case on grounds including that it constitutes a vindictive prosecution and that Comey's post did not amount to a true threat. Comey's lawyers contend that investigators in the case misled judges, submitted documents containing false statements, withheld key facts and repeatedly came up empty in their efforts to prove that Comey intended a physical threat or knew that the number 86 could suggest violence.
The entry for “86” from Merriam-Webster, the dictionary used by The Associated Press, says its meaning is “to throw out,” “to get rid of” or “to refuse service to.” Trump, a Republican, is the 47th president.
The Justice Department maintains that the post constituted a real threat
Federal prosecutors maintain that the photo of the seashells, which Comey said he found on the beach, constituted a threat against Trump. Comey deleted the post shortly after he put it up, saying he did not know that anyone interpreted the numbers as a call to violence. His lawyers have said that the slogan has long meant to “get rid of” or “eject” and has been featured on thousands of items sold online and regularly displayed at protests.
But the department sought in its filings to place the post against the backdrop of assassination plots or attempts against Trump in the months before and after Comey's post. Prosecutors say that two minutes before the post was made, Comey's wife texted him a screenshot of a definition of "86" that said "to get rid of or refuse service."
"There is no serious dispute that an objective viewer of Comey’s post could read it to mean ‘Kill President Trump,’” prosecutors wrote.
The photo was posted days before Comey was set to release a novel he wrote titled “FDR Drive,” in which a prosecutor pursues a far-right social media personality who has called out his adversaries by name and inspired violence against them by his fans, the department said.
After the Instagram post provoked an outcry, according to the government's filings, Comey's publishing agent observed in a text message to him that he had “gone viral.” Comey responded that that was “not my intention, but I’ll be OK if it sells books.” The agent replied, ”Music to an agent's ears."
Prosecutors also asserted there was “reason to doubt” Comey’s account of having come upon the seashells while on a walk, saying they were located 4 miles (6 kilometers) “down from the beach from beachfront property where Comey was staying, in an area separated from the ocean by a sand dune.” They said there was "no evidence that anyone else arranged, photographed, or even saw the shells.”
Comey has called the case vindictive, but prosecutors deny that
Comey's lawyers have called the indictment, which was filed months after an earlier and unrelated case against him was dismissed, part of a Trump retribution campaign targeting one of the president's vocal critics. Trump fired Comey as head of the FBI in 2017 as Comey was overseeing an investigation into potential ties between Trump's 2016 presidential campaign and Russia. Trump since then has called for him and other perceived adversaries to be jailed.
But the Justice Department denied allegations of vindictiveness, saying the decision to indict Comey was made by the U.S. attorney in the area and did not stem from a directive from the president or the attorney general.
To bolster their claims that Comey was unjustly targeted, defense team argued that investigators struggled to develop compelling evidence from witnesses that Comey had intended the post as a threat, but they concealed that from federal magistrates as they applied for warrants to search digital accounts associated with Comey and his wife
For instance, defense lawyers have said, the FBI searched an internal database of information about open and closed investigations for any indication of an association between Comey and the term “86” but found inconclusive results. An FBI agent also requested a review of the FBI file for the case against reputed mobster John Gambino, which Comey worked on as a young prosecutor, but found no references to the term “86.”
Investigators also interviewed a key government cooperator in the case, Salvatore “Sammy the Bull” Gravano, who said he did not recall ever discussing the term “86” with Comey or hearing it in connection with the trial.
The latest filings made clear that the administration was standing behind the premise of the case.
“No Government theory was disproved at that time, or now. No intentionally false omission exists, much less one made with reckless disregard for the truth,” prosecutors wrote. “The evidence still supports that Defendant acted at least recklessly by consciously disregarding a substantial risk that his coded message of “8647” that he sent to his 200,000 or so Instagram followers, and the millions of secondary social media users who would view this as threatening violence against the President of the United States.”