DOJ Indicts Comey Over a Photo of Seashells — After First Indictment Was Thrown Out

On April 28, 2026, Acting Attorney General Todd Blanche held a press conference at the Justice Department to announce the second indictment of former FBI Director James Comey. The charges: threatening the president and transmitting a threat in interstate commerce.

The threat: a photo of seashells on a beach.

The photo

Comey posted a since-deleted Instagram photo showing shells arranged to spell "86 47" with the caption "Cool shell formation on my beach walk." In slang, "86" means to nix or get rid of something. "47" is Trump's number as the 47th president. The government's theory: this was a veiled death threat against the president of the United States, transmitted via a beach-walk photo on social media.

The first indictment — thrown out

This is the DOJ's second attempt to prosecute Comey. The first indictment, in September 2025, charged him with making false statements to Congress and obstruction — centering on his 2020 testimony about the FBI's Russia investigation. It was filed just days before the statute of limitations expired.

That case was dismissed in November 2025 after a judge ruled that prosecutor Lindsey Halligan had been unlawfully appointed. The indictment didn't fail on the merits — it failed because the DOJ couldn't even get the paperwork right.

The legal problem

Under recent Supreme Court precedent (Counterman v. Colorado, 2023), prosecutors must show that the defendant was aware that his message could cause fear and callously disregarded that risk. Legal experts have been blunt: a photo of seashells with an ambiguous number is unlikely to meet that standard.

CNN's analysis headline: "James Comey's '86 47' indictment would seem to be bad news for lots of people — including Trump" — noting that if arranging seashells to spell a political slogan is a federal crime, then countless Trump supporters who have posted "86 46" (targeting Biden) would be equally chargeable.

The vindictive prosecution defense

Comey's lawyer, Patrick Fitzgerald — the former U.S. Attorney who prosecuted Scooter Libby — told the magistrate judge he will file a motion to dismiss on the grounds of vindictive prosecution. The argument: Trump publicly demanded Comey be indicted; when the first indictment failed, the administration immediately sought a second on a different theory. The target came first; the charge came second.

Comey's response:

"I'm still innocent. I'm still not afraid. I still believe in the independent federal judiciary, so let's go."

The pattern

The DOJ under Trump has now:

• Indicted Comey twice — first case thrown out, second over seashells
• Opened a criminal probe into Fed Chair Powell — no evidence found, judge called it pretextual, dropped to clear Warsh's confirmation
• Investigated a NYT reporter for writing about Kash Patel's girlfriend — DOJ officials shut it down as retaliation
• Readopted firing squads, electrocution, and gas for executions

The Justice Department is prosecuting a former FBI director for a beach photo, while its own FBI director is getting drunk at nightclubs, having SWAT teams called because he's unreachable behind locked doors, and investigating reporters who write about his girlfriend. The contrast between who this DOJ prosecutes and who it protects is the story.