DOJ re-indicts Comey over beach photo officials call a Trump threat

The federal charges filed April 28, 2026 in the Eastern District of North Carolina include Count 1 under 18 U.S.C. § 871 — knowingly and willfully threatening the life of or bodily harm to the president — and Count 2 under 18 U.S.C. § 875(c) — transmitting in interstate commerce a communication containing a threat to injure another person. U.S. Attorney W. Ellis Boyle announced the indictment, and Assistant U.S. Attorney Matthew R. Petracca is prosecuting the case. Each count carries a maximum of 10 years in prison, for a combined maximum of 20 years.

The indictment is the second criminal action brought by Trump's DOJ against Comey. The first charges, filed in September 2025 under U.S. Attorney Erik Siebert's office, alleged Comey lied to Congress about authorizing disclosure of investigative information to a journalist. That case collapsed when a federal judge ruled the prosecutor who brought it was illegally appointed. The repeated prosecutions have raised questions among legal scholars about selective prosecution — bringing charges against a specific individual because of their criticism of a government official.

The Supreme Court's 2023 decision in Counterman v. Colorado established the constitutional standard for prosecuting speech as a 'true threat.' The court held that prosecutors must prove the defendant was at minimum reckless — meaning they consciously disregarded a substantial risk that their communication would be viewed as threatening. It's not enough that a reasonable observer might see the speech as threatening; the government must prove what was in the speaker's mind.

Applying Counterman, First Amendment legal scholars said the Comey case faces severe obstacles. Eugene Volokh, a senior fellow at the Hoover Institution at Stanford who specializes in the First Amendment, told CNN in an April 2026 interview the case was 'not going anywhere' and was 'clearly not a punishable threat.' The government would need to prove Comey knew or recklessly disregarded that a photo of seashells he described as a 'cool formation' would be interpreted as a death threat. But the indictment doesn't allege that Comey even knew about the '86' slang or Trump's 47th president designation beforehand.

The prosecution sits in a broader pattern of Trump DOJ actions against political critics. Acting Attorney General Todd Blanche — who served as Trump's personal defense attorney in his criminal trials — oversees a Justice Department pursuing charges against former Fauci adviser David Morens, Southern Poverty Law Center officials, and Comey. According to filings in Comey's motion to dismiss, Trump personally urged Attorney General Pam Bondi to prosecute Comey, telling her he believed Comey deserved jail time.

Comey's attorneys filed pre-indictment motions arguing the case constituted selective prosecution — bringing charges against someone specifically because of their criticism of a government official. The same DOJ that prosecuted Comey dropped the investigation of Federal Reserve Chair Jerome Powell despite public pressure from Trump, which will likely form the core of Comey's selective prosecution argument in pretrial motions.

The true threats doctrine has a long history in First Amendment law, tracing back to Watts v. United States, 394 U.S. 705 (1969), where the Supreme Court held that not all threatening language is unprotected speech. The Watts case involved a young man arrested for saying he wouldn't be drafted into the Army and 'if they ever make me carry a rifle the first man I want to get in my sights is LBJ.' The Court ruled this was political hyperbole, not a true threat.

Counterman v. Colorado (2023) tightened the standard further after years of courts applying different tests. The case involved a man arrested for making hostile comments about a bartender on Facebook. The Supreme Court ruled courts can't prosecute ambiguous statements as threats under the recklessness standard — speakers must consciously disregard a substantial risk their words would be seen as threatening. This means prosecutors bear a heavy burden proving subjective intent, not just that reasonable observers could interpret speech as threatening.

Comey has steadily built a public presence as a Trump critic since his 2017 firing. His first memoir, "A Higher Loyalty," detailed his version of events leading to his termination and the Russia investigation. A second memoir, "Saving Justice," came out in 2021. On social media, Comey's posts frequently comment on Trump administration decisions and broader questions about ethics and governance in law enforcement. His Instagram following, which remained relatively small until Trump's second term, grew substantially after he began more regularly posting.

The May 2025 seashell post fit into this pattern of public commentary. Comey's account primarily consists of vacation photos, reflections on faith, and occasional political observations. Nothing in his post history suggested he understood '86 47' as code for harming anyone. His immediate deletion and explicit statement that he 'opposed violence of any kind' became central to First Amendment scholars' assessment that the case couldn't survive legal scrutiny.

Todd Blanche's role as acting attorney general creates a profound appearance problem for the prosecution, regardless of its legal merits. Blanche served as Trump's defense attorney in Trump's Manhattan hush-money trial, the Florida classified documents case, and the Washington election interference case. In those cases, Blanche argued vigorously that the prosecutions were politically motivated and constitutionally flawed.

Now, as the nation's chief law enforcement officer, Blanche oversees prosecutions of Trump's critics that appear to follow Trump's public statements. In April 2026, Trump publicly stated his belief that Comey should face prosecution. Days later, Blanche moved from deputy AG to acting AG, inheriting full control of the Comey indictment. Federal prosecutors have historically maintained independence from the president's wishes, but this administration has explicitly rejected that norm. Blanche told a CNN interviewer that he doesn't view Trump's direction to investigate his enemies as 'pressure' but rather as 'the president working every day to make sure we're doing our jobs.'

The political context surrounding Comey's prosecution illuminates questions about institutional independence and rule of law. Comey's first indictment, brought under previous attorney general Pam Bondi, collapsed when a judge found the prosecutor was illegally appointed. Rather than accept that outcome, the Trump DOJ brought a new prosecution on different charges — a pattern known as successive prosecution that Congress has tried to limit through statute.

Meanwhile, investigations of some Trump critics have been dropped. The DOJ closed the investigation of Federal Reserve Chair Jerome Powell around the same time it was ramping up pressure on Comey. Comey's lawyers argue this selective enforcement violates the constitutional principle that government power can't be used against someone because of their exercise of free speech. That defense will likely require testimony from DOJ officials about why Comey was prosecuted while others facing similar scrutiny were not.

The case will likely move through federal court on a compressed timeline, given the 2026 election year. If Comey is convicted, he'd appeal to the Fourth Circuit Court of Appeals (which covers North Carolina), where First Amendment precedent strongly favors speech protections. The Supreme Court's Counterman v. Colorado decision is recent and decisive, and all eight sitting justices agreed on the recklessness standard, making reversal unlikely.

The bigger question is whether courts will even reach the First Amendment merits or instead dismiss on grounds of selective prosecution or vindictive prosecution. The Supreme Court has recognized that using criminal prosecution as retaliation for protected speech violates due process. Comey's attorneys will argue that Trump's public statements demanding his prosecution, combined with the drop of Powell's investigation and the collapse of the first indictment, constitute a pattern of retaliation.