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By: Scott A. Coffina
Former FBI Director James Comey was indicted. Again. Months after a previous indictment was dismissed by the federal district court in the Eastern District of Virginia, the Justice Department recently secured another grand jury indictment against Comey, this time in the Eastern District of North Carolina, which is centered in Raleigh and includes the North Carolina beach where he was vacationing.
Comey’s alleged crime is not complex. He is accused of threatening the life of President Donald J. Trump by posting a photo on Instagram in May 2025 of seashells arrayed on a beach making out “86 47” with the comment “Cool shell formation on my beach walk,” which, the three-page indictment alleges, “a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States,” in violation of 18 U.S.C. Section 871 and Section 875(c). Trump, this term, is the 47th U.S. President. Because his two terms were interrupted by the Biden presidency, he was also our 45th President.
Many commentators across the political spectrum dismiss the indictment as a sham, and a mere continuation of President Trump’s effort to avenge the lawfare that the Democrats waged against him during the interregnum between his presidencies. The court, however, cannot paint with such a broad brush. And, it must be recognized, a grand jury did return this indictment, unlike some of the “lawfare” cases against President Trump’s political enemies the Justice Department has pursued. That being the case, let’s consider how the court may evaluate the charges when Comey’s expected motion to dismiss the indictment is filed. The case will likely turn on its interpretation of the term “86.”
The History and Meaning of “86”
According to Merriam-Webster, “Eighty-Six” means to “throw out” or “get rid of something.” Some (unverified) accounts connect the origin of term to the word “nix,” with which “86” rhymes. Others tie it to a bar called “Chumley’s” at 86 Bedford Street in New York City. As legend has it, when being tipped off by police about a raid during Prohibition, the bar was told to send patrons out the “86 Bedford door.” This latter tale is retold in Jef Klein’s book “The History and Stories of the Best Bars of New York.“
Although “86” can be traced back to the 1920’s, it became embedded in the jargon of the restaurant business beginning with 1930’s soda counters. Merriam-Webster indicates that the earliest uses of “eighty-six” were as a noun, referring to a sold-out item at the soda counter. An article from The New York Herald Tribune in 1941 notes, “When a soda popper says the tuna fish salad is eighty-six, he means there isn’t any more.” To this day, people who have worked in restaurants are familiar with that usage of the term. And there are multiple episodes of the current Hulu series “The Bear,” about a Chicago diner, where characters “86” menu items they run out of.
The use of the term as a verb meaning “to get rid of” someone or something appears as early as 1947, when Variety referred to vocalist Herb Jeffries being “Eighty-Sixed,” or nixed, by disc jockeys from radio air play for failing to show up at a scheduled appearance.
“Eighty-six” also has been used in some high-profile movies. In 1972’s “The Candidate,“ political consultant Marvin Lucas (played by Peter Boyle) instructs Senate candidate Bill McKay (Robert Redford) to “86 the sideburns,” meaning get rid of them to present a more polished image. And in “Casino“ (1995), there is a scene where floor manager Billy Sherbert (Don Rickles), reports to casino executive Sam Rothstein (Robert DiNiro) that Nicky Santoro (Joe Pesci) was losing big at blackjack, despite being banned from the casino, because “nobody told him he was 86’ed from the joint.”
In Season 9 of “Seinfeld,“ Kramer (Michael Richards) tells Jerry (Jerry Seinfeld) to “86 the jacket” as his friend struggles with a bulky suede sport coat. As a “M*A*S*H“ fan, I recall Col. Sherman Potter (Harry Morgan) yelling at Maj. Charles Emerson Winchester (David Ogden-Stiers) to “Eighty-six it, Winchester!” This actually occurred in two episodes, one where Potter was directing him to stop whining about conditions at the hospital, and the other when he was ordering Winchester to turn off his classical music.
The Use of “86” as a Threat
My research did not find common or pop culture references to the term “86” meaning to kill someone, although it apparently is used in crime fiction. For example, author James Ellroy used the expression in this way in two novels, “Widespread Panic“ (2021) and “Destination: Morgue!“(2004).
The only court decisions where “86” was used in a violent context involve the same case, Leach v. Mansfield, two unreported opinions from the Southern District of Texas. See 2009 WL 3190463(S.D. Tex. Sept. 28, 2009), and 2010 WL 707382 (Feb. 24, 2010). This civil case arose from the Veterans Affairs Medical Center ordering an employee to undergo a psychiatric and psychological examination after he sent a series of aggressive emails to his colleagues complaining about stressful working conditions, including one where the employee wrote, “I have never been so tempted to simply ‘go 86.’ For those who don’t know what ‘going 86’ is, let is [sic] to understand it’s not a good thing.” 2009 WL 3190463 at *2. This is not a use of the term “86” we have found anywhere else, but the district court associated it with “going postal,” which itself is a slang term for committing serious workplace violence. The court considered the employee’s comment to be a threat to kill his colleagues and supervisors, and upheld the VA’s decision to order a fitness-for-duty exam for him. The meaning of his threat to “go 86” was not at issue in either court decision.
Recent Usage of “86” in a Political Context
“86” seems to have been used in the political context only recently. During President Trump’s first term—“Trump 45”—his press secretary, Sarah Huckabee Sanders, was refused service at the Red Hen Restaurant in Virginia in 2018, as a protest by restaurant employees against the Trump Administration. At the end of their shift an employee wrote “86 Sarah Huckabee Sanders” on a note to their morning manager, which went viral. In 2020, when President Trump was running for reelection, Michigan Governor Gretchen Whitmer appeared on “Meet the Press“ with an “86 45” pin visible on a table behind her, creating a minor stir, but no serious discussion that she was advocating for President Trump’s assassination as opposed to his electoral defeat.
In February 2024, former congressman Matt Gaetz, celebrating the toppling of GOP House leadership, tweeted, “We’ve now 86’d: McCarthy, McDaniel, McConnell. Better days are ahead for the Republican Party.”
During both President Trump’s first term and Joe Biden’s presidency, t-shirts and other merchandise with “86 45” and “86 46” were sold on Etsy, Amazon, and independent apparel sites. (Even baby onesies were available!) No one, to our knowledge, was arrested or charged for selling or wearing apparel advocating “eighty-six-ing” either president. The fact that each president was subject to impeachment resolutions (Trump was actually impeached twice) and faced reelection, presented benign explanations for wearing a shirt advocating for them to be driven from office, be it by impeachment or the ballot box, which is classic First Amendment-protected political speech.
Assessing the Charges Against Comey
The foregoing history provides important context by which to evaluate the charges against Comey for his “86 47” seashells Instagram post, and whether, as the indictment alleges, “a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States.”
To secure a conviction for a threat against the President under 18 U.S.C. 871, the government must prove that Comey knowingly and willfully made or communicated words constituting a “true threat” to take the life of or inflict bodily harm upon the President. Courts will look at the charges “in a context and under such circumstances that a reasonable person would foresee that the statement would be interpreted by persons hearing or reading it as a serious expression of an intention to inflict bodily harm upon or take the life of the President.” U.S. v. Olson, 629 F. Supp 889, 891 (W.D. Mich. 1986).
The charge under Section 1875(c) includes similar elements, with the addition of the defendant transmitting a communication in interstate or foreign commerce, which the Instagram posting would satisfy.
Does Comey’s Instagram Photo Constitute a “True Threat”?
The government may have significant challenges with both elements of the crime, and failing to prove either of them would cost them the case. First, it is questionable whether Comey posting the seashell array communicated a threat to kill or harm President Trump, let alone a “true threat.” It is not an explicit threat, given the history of the term “86” and the communication of “86 47” merely as a photo on Comey’s Instagram page. An expression meaning “to get rid of” can be viewed as threatening, but “86” historically has not been used that way. It therefore is not reasonable to believe someone viewing the post would perceive it as a threat. There was nothing else depicted in the photo to indicate Comey was advocating getting rid of President Trump violently. In short, there is little to distinguish the Comey photo from the “86 45”, “86 46”, or “86 47” t-shirt logos that no one has viewed as threatening either president.
Even if the court finds that the photo constituted a threat, it is doubtful that posting a mere photo of “86 47” spelled out in seashells on Instagram would constitute a “true threat.” In Counterman v. Colorado, 600 U.S. 66, 74 (2023), the Supreme Court stated that a threat that is “true” is distinguished from “jests, ‘hyperbole’, or other statements that when taken in context do not convey a real possibility that violence will follow (say, ‘I am going to kill you for showing up late‘) …True threats are ‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.’” There was no such expression in Comey’s Instagram post. His only commentary was that it was a “cool shell formation.” He did not indicate he would act on “86 47,”and he did not suggest he’d be anywhere near the president to do so. In context, including the recent usage of the term in the political sphere without any serious interpretation of it as a threat, “86 47” laid out in seashells on a beach appears to be nothing more than a statement of opposition to President Trump, which is protected political speech.
Can the Government Prove Intent?
Under Section 871, the government must also prove the threat, if one existed, was made “knowingly and willfully,” but it need not prove Comey intended to carry out the threat. In Counterman, the Supreme Court established a recklessness standard for true threats, meaning the
government must show, at minimum, the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” In other words, the government will need to prove that Comey consciously understood that posting the “86 47” photo would be perceived as a threat on the President’s life, or if he didn’t know or intend that effect, that it was so obvious the Instagram post would be perceived that way, it was reckless for him to post it.
Comey reportedly was visited by the Secret Service after his Instagram post last May, and denied that he intended to threaten President Trump’s life. He also deleted and disavowed any violent meaning behind the post the next day. The indictment does not include any specific evidence of Comey’s intent, but acting Attorney General Todd Blanche suggested on ‘Meet the Press‘ that the government has “evidence of all sorts” against Comey that is not included in the indictment. Given the historical benign meaning of the term “86,” without direct evidence such as texts, emails, or comments where Comey indicated he intended the post to be a threat, it will be extraordinarily difficult for the government to convince the court, or a jury, of Comey’s malintent.
The Government’s Best Case to the Court or Jury
The government’s best argument to avoid dismissal could be that a grand jury found probable cause that Comey’s Instagram post communicated a threat, and that decision should not be disturbed. Of course, if the government has evidence that Comey arranged the seashells himself, that would be a bad fact for him, although the prosecution would still have to prove he was ascribing a violent meaning to “86.” DOJ may also point to the fact that Comey is the former FBI Director with nearly 200,000 Instagram followers, which could lend more gravity to his post. (On the other hand, Comey could argue that as the former FBI Director, it was less likely that people would interpret a post from him with an image of “86 47” as a threat on the President’s life.)
DOJ may also point to the heightened threat environment surrounding President Trump in May 2025 compared to his first term. He was the target of two assassination attempts within the previous year, and some of the unhinged criticisms aimed at him (i.e., comparing him to “Hitler” and calling him a “threat to democracy”) have perhaps lowered the threshold for what constitutes a true threat. The Hill has reported that last year saw a record high number of cases brought over threats against public officials—133 of them—and there have been 46 cases brought over threats so far this year. Indeed, there was a third assassination attempt on President Trump just last month.
Moreover, unlike the circumstances in the “45” and “46” administrations, the message could not be interpreted as advocating to vote President Trump out of office, since he can no longer stand for reelection. Nor can it realistically be viewed as advocating for his impeachment with a Republican-controlled Congress. A mere four months into his term last May, the only way President Trump would be “86’ed” from the presidency was through death or incapacitation.
Perhaps these arguments by the government would give the court pause before dismissing the case for lack of a “true threat,” although Comey appears to have the simpler argument—his “threat” was a photo of seashells arrayed to show “86 47”, and “86” has been far more commonly associated with the restaurant business than with violence. He may also argue this is selective prosecution for communicating an image that one can find on t-shirts—including, currently, with the logo “86 47”—on Amazon and Ebay, for which no one else has been charged.
Conclusion
Given President Trump’s vows of retribution against those who participated in lawfare against him, or other political enemies, as well as the prior indictment, one is right to look skeptically at the latest charges, especially given the inherent ambiguity of the Instagram post. Unless the acting Attorney General is correct that there is substantial additional evidence beyond what is identified in the indictment, the court will likely “86” the case against Comey.
Scott A. Coffina is the former Burlington County Prosecutor, and a former Assistant United States Attorney. He also was associate counsel to President George W. Bush and senior deputy chief counsel to Governor Chris Christie. He currently is a partner at Pietragallo, Gordon Alfano Bosick & Raspanti, and manages the firm’s office in Marlton.
Reprinted with permission from the March 5th issue of the New Jersey Law Journal. © 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.