A federal grand jury in the Eastern District of North Carolina returned a two-count indictment on April 28, 2026, charging former FBI Director James Comey with making threats to harm President Donald J. Trump [1]. Acting Attorney General Todd Blanche announced the charges the same day [1]. Comey, 65, responded with a video statement asserting his innocence and criticizing the Justice Department's decision to prosecute [2].
The indictment centers on a May 15, 2025, Instagram post in which Comey shared an image displaying the numerals "86 47" [1][2]. Federal prosecutors allege that a reasonable recipient would interpret that combination as expressing intent to harm the president, where "86" is slang for elimination and "47" refers to Trump's designation as the 47th president [2]. The charges are brought under federal statutes criminalizing threats against the president. The case is being prosecuted by the U.S. Attorney's Office for the Eastern District of North Carolina, with Daniel N. Rosen identified among the key personnel on the matter [1].
This indictment is the second federal charging action brought against Comey during the current Trump administration [2]. The prosecution has drawn immediate scrutiny from First Amendment scholars and civil liberties advocates, who argue that the post, presented without accompanying verbal threat or explicit statement of intent, may constitute protected political expression rather than a true threat under controlling Supreme Court precedent [2]. The Justice Department's position is that the image's context and common cultural meaning satisfy the statutory threshold for a prosecutable threat [1].
Comey's defense team is expected to challenge the indictment on First Amendment grounds, likely invoking the Supreme Court's 2023 decision in Counterman v. Colorado, which held that the government must demonstrate the speaker was subjectively aware of the threatening nature of a communication before a conviction can stand [2]. That standard, if applied strictly, creates a significant evidentiary burden for prosecutors seeking to prove Comey understood the post would be received as a genuine threat. Pretrial motions briefing in the Eastern District of North Carolina will set the initial litigation schedule, and a motion to dismiss on constitutional grounds is widely anticipated as the first major procedural development in the case.
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