The Justice Department hasn’t given up on prosecuting James Comey, and a federal grand jury in North Carolina delivered an indictment against the disgraced former FBI director, reportedly for making threats against President Donald J. Trump.
The indictment involves a since-deleted social media post from May 2025 showing seashells in the form of “86 47,” which was interpreted as an encouragement for Trump to be assassinated, sparking outrage at the time with the “slimeball” ex-government official playing innocent and insisting that he didn’t himself create the controversial message. He was just walking on the beach when he saw it.
Comey is now facing his day in court after a judge tossed a prior charge last year on a technicality, but the feds may have a tough time getting a conviction with constitutional law expert Professor Jonathan Turley opining about the “weak case” and Comey’s free speech rights.
On Tuesday’s edition of “America Reports” on Fox News, co-host Gillian Turner asked the esteemed legal expert about whether it mattered if Comey himself had arranged the shells or just walked by and snapped a picture of them.
(Video Credit: Fox News)
“Well, I have to say, I must be in a parallel universe to be talking about the shell artwork of James Comey, but the fact is that it is relevant only to the extent that he might have denied a fact that proved to be, his denial proved to be false to federal officials,” Turley said.
He continued, “Well, if he was questioned and gave false information to federal investigators, that can be the basis of a charge. I think that just showing the picture is going to be a weak case in terms of a threat. What’s interesting is that the first indictment that was dismissed involved false statements under 18 USC 1001, and that’s the most used provision in terms of false statement prosecutions by the Department of Justice.”
“What’s interesting about that dismissal is that it was based on the fact that Lindsey Halligan, who was the acting U.S. attorney, was viewed as not properly in her position,” he added, referring to the prior case that was tossed. “That problem has now been cured by James Hundley, who is appointed essentially by the court. Now, it’s not clear if they went back and just cured that problem, they’re gonna reissue part of what they were pursuing, or whether we’re talking at this point of something that is a new charge.”
Professor Turley specifically addressed the First Amendment issues in a column that was published by Fox News.
As one of his longest and most vocal critics, I would frankly prefer to crawl into one of Comey’s conversant shells than write this column. However, here we are. This indictment is unconstitutional and will not likely survive constitutional challenge…https://t.co/F1bDKnhYYw
— Jonathan Turley (@JonathanTurley) April 29, 2026
“To convict Comey, the Justice Department will have to show that his adolescent picture was a ‘true threat’ under 18 U.S.C. § 871 and § 875(c). It is not,” he wrote, adding, “The First Amendment is designed to protect unpopular speech. Popular speech rarely needs protection. It also protects bad and hateful speech. It even protects lies so long as those lies are not used for the purpose of fraud or other criminal conspiracies.”
Another cable network’s top legal analyst also expressed skepticism that the DOJ will be able to secure a conviction against the slippery Comey.
(Video Credit: CNN)
“I think this indictment is deeply flawed,” CNN’s Elie Honig said during a discussion of the indictment on “The Lead” on Tuesday afternoon. “I think it’s probably fatally flawed, and here‘s why. The law that Justice Department prosecutors have chosen to charge here requires an intent to kill or physically injure the president of the United States, and I think if you look at this communication, these seashells, it‘s just way too ambiguous.”
“What does 86 mean? Yes, there have been instances in pop culture and elsewhere where people have used 86 to mean kill, but there have been plenty of other instances, apparently far more instances, where it simply means to remove or to cross off a list,” Honig continued. “And that ambiguity is going to be a major problem for prosecutors, because, I will tell you, ambiguity is always the enemy of the prosecutors because you have to prove your case, not just by 51 percent or 75 percent, you have to prove your case beyond a reasonable doubt. And I don‘t see any realistic way prosecutors are going to be able to do that here.”
“He knew exactly what that meant,” Trump told Fox News anchor Bret Baier in a May 2025 interview. “A child knows what that meant. If you’re the FBI director and you don’t know what that meant, that meant assassination. And it says it loud and clear.”
“Citizens are allowed to denounce and even wish a president ill. I have written about what I called this ‘age of rage.’ It is not our first. This nation was founded in rage. The Boston Tea Party was rage. In forming this more perfect union, we created the world’s greatest protection of free speech in history. It is arguably the most American contribution to our Bill of Rights. Great Britain did not — and still does not — protect free speech as we do,” Turley wrote in his column.
“It comes at a cost. Perhaps Comey is that cost. However, he has a right to write out any hateful thoughts that come to him on his walks on the beach,” he added.
