A federal grand jury in the Eastern District of North Carolina indicted former FBI Director James Comey on two counts arising from a May 2025 Instagram post: threatening the President under 18 U.S.C. § 871(a), and transmitting a threat in interstate commerce under 18 U.S.C. § 875(c) [1]. The post depicted seashells arranged on a North Carolina beach to spell "86 47," a phrase prosecutors allege a reasonable person would interpret as a serious expression of intent to harm President Trump [1]. Comey has not entered a plea.
The statutory charges occupy distinct legal terrain. Section 871(a) targets explicit threats against the President and carries a maximum of five years' imprisonment [1]. Section 875(c) requires proof that the defendant transmitted a communication containing a threat to injure another person in interstate commerce [3]. The Supreme Court's 2023 decision in Counterman v. Colorado held that the government must prove at minimum that the defendant was reckless as to whether the communication would be perceived as threatening, setting the mens rea floor prosecutors must clear [3]. Comey's defense team, led by Patrick Fitzgerald, is expected to argue that the post was an ambiguous political expression protected by the First Amendment, not a true threat under that standard [2][3].
This is Comey's second federal indictment since Trump began his second term. The first, charging Comey with lying to Congress, was dismissed by a federal judge after the court determined the appointed special prosecutor lacked proper statutory authority [2]. The current indictment was brought through the U.S. Attorney's Office for the Eastern District of North Carolina, with W. Ellis Boyle serving as the lead prosecutor [1]. Attorney General Todd Blanche's Justice Department authorized the referral to the grand jury following a criminal referral tied to the Instagram post [1][2].
The case is proceeding in New Bern, North Carolina, the venue closest to the beach where the photograph was taken [1]. Legal analysts note that the outcome will likely turn on the government's ability to establish Comey's subjective recklessness under Counterman, a burden that courts have applied inconsistently in social-media threat cases since the ruling [3]. A pretrial motion challenging the indictment on First Amendment grounds is considered probable, and any ruling on that motion could generate circuit precedent governing how "86" or numerically coded political speech is treated under the true-threats doctrine [3].