Cited Cases Suggest Comey Indictment Faces Tougher Legal Hurdle

The legal test may be harder for James Comey than acting Attorney General Todd Blanche suggested. Blanche said the former FBI director’s indictment was comparable to routine threat prosecutions, yet the cases he pointed to involved explicit kill language, repeated posts and direct threats to named officials, while Comey’s case rests on a single Instagram image of seashells reading “86 47.”

The Justice Department charged Comey, 65, with two counts, one under 18 U.S.C. 871 and one under 18 U.S.C. 875(c). Prosecutors said he knowingly and willfully made a threat to take the life of, and inflict bodily harm upon, the president, and that he consciously disregarded a substantial risk that the post would be viewed as threatening violence. The government says the image, posted on May 15, 2025, would be read by a reasonable recipient familiar with the circumstances as a serious expression of intent to do harm.

That theory will be tested against the Supreme Court’s 2023 decision in Counterman v. Colorado, which requires proof that a defendant had some subjective understanding of the threatening nature of the speech and says recklessness is enough to satisfy that standard. Comey’s defense is likely to focus on the gap between that rule and a post he quickly deleted, saying he did not know the numbers were associated with violence and condemning violence of any kind.

The cases Blanche cited cut both ways. Diego Villavicencio pleaded guilty in Florida after prosecutors said he wrote, “I’ll kill you and your family,” posted that he was headed to Mar-a-Lago to do harm, and threatened Trump, Jerome Powell and Rep. Eric Swalwell. Michael James Ferr received 27 months in prison after threatening to kill then-President Joe Biden and a Secret Service agent who investigated the threat. In Massachusetts, Andrew D. Emerald was charged with eight counts after prosecutors said he posted repeated Facebook threats to injure and kill Trump, including language about putting him “in a f****** body bag.”

Blanche has argued that “you are not allowed to threaten the president,” and that Comey’s conduct was the same kind of conduct the department “will always investigate and regularly prosecute.” But the cited precedents show a more concrete pattern of direct, repeated and unmistakable threats. That contrast gives Comey’s lawyers a cleaner argument: if the Justice Department wants to treat a cryptic post as a criminal threat, it will have to meet the same evidentiary standard it has demanded in far clearer cases.