It’s said that history repeats itself, first as tragedy, then as farce. When it comes to indictments, the Trump administration’s Department of Justice has streamlined the process by skipping straight to farce and then somehow doing it twice.
A federal grand jury in the Eastern District of North Carolina has indicted former FBI Director James Comey for the high crime of arranging seashells. Specifically, posting a photo to Instagram last May of shells on a beach spelling out “86 47,” captioned “Cool shell formation on my beach walk.” The indictment levels two counts — making a threat against the president under 18 U.S.C. § 871(a), and transmitting a threat in interstate commerce under § 875(c).
Because Comey arranges sea shells by the sea shore.
This indictment arrives following the DOJ’s faceplant late last year, when insurance lawyer Lindsey Halligan attempted to indict Comey for making false statements in the Eastern District of Virginia. Halligan, an illegal appointment with no more authority than a random person off the street — to use the federal judge’s language — had been unlawfully appointed on top of turning in a fake indictment the full grand jury never voted on. This epic screw up resulted in the putative charges against Comey becoming time-barred.
That earlier indictment was bullshit. But at least it was serious-sounding bullshit. Going after Comey for lying about authorizing leaks seems like something a real prosecutor might charge.
By contrast, the new indictment in the Eastern District of North Carolina lacks such gravitas. The government lodged criminal charges against the former FBI Director for using Prohibition-era slang for tossing an unwelcome guest… in shell form.
If this wasn’t stupid enough, the indictment manages to MISSTATE THE LAW in the indictment. Count I describes Comey’s supposed crime as creating an image that “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.” Any first-year law student who completed Crim Law — a competence bar EDNC US Attorney Ellis Boyle seemingly failed to clear — will note that the Supreme Court in Counterman v. Colorado (2023), replaced the “reasonable recipient” standard, requiring instead a showing the speaker subjectively understood that the statement would be perceived as threatening. Even if the indictment included the proper standard, the government would face an uphill battle since Comey deleted the post the same day, saying that he hadn’t realized “86” had violent connotations — which it doesn’t really, but whatever — and apologized.
The second count, that Comey then distributed the threat, suffers the same defects as the first.
But the genuinely unhinged part of the indictment appears on the next page. A forfeiture notice seeking “any property, real or personal, which constitutes or is derived from proceeds traceable to the said offense.”
Do they want the shells?
As many people learned from the Afroman case, law enforcement’s forfeiture powers are extensive and deeply corrupt. The language of the indictment flags the government’s authority to seek “substitute assets” in the event they can’t actually find the supposedly ill-gotten gains. But even with broad latitude to steal from defendants, it’s hard to imagine what the government expects to get out of James Comey. He’s not a Kardashian — he’s not paid thousands of dollars for posting viral vacation Instas. Perhaps this forfeiture language is copypasta the government mindlessly drops into every indictment. But given the cynical and petty nature of this Justice Department, it’s hard to see this as anything but a threat to rob the former FBI Director.
In some ways, it’s fitting that the pursuit of Comey found its way back to the 8647 nonsense. When the image first appeared, current FBI Director (for now!) Kash Patel told America that he was prioritizing protecting Trump’s reputation over child sex predators. Or, more accurately, over catching child sex predators. That’s a key clarification or else the sentence doesn’t actually make sense, does it?
At least it’s not all bad news for the Comey family. A federal judge let Maurene Comey’s lawsuit go forward. Now the administration is arguing in one court that they would never retaliate against the Comey family, while in another court prosecuting Jim Comey for a beach photo.
Why did this loser of a case drop now? It’s pretty simple: the DOJ wants to tie this shell picture from a year ago to the White House Correspondents’ Dinner incident. The administration needs to bootstrap as much on top of that story as it can before it fades from the headlines and bring attention back to topics like Todd Blanche covering up the Epstein files or why Kash Patel is being called “J. Edgar Boozer” behind his back.
Is this prosecution frivolous? Yes. Is it an ominous uptick in the administration’s willingness to chill civil liberties and stifle criticism? Also yes. It’s an uncommon intersection: Frivolinous.
(Indictment available on the next page…)
Ex-FBI Director James Comey indicted for his ‘8647’ seashell post on Instagram [CNBC]
Earlier: James Comey Enjoys Long Walks On The Beach… So MAGA Gonna Send Him To El Salvador Prison Camp
Kash Patel Says He’s Prioritizing Social Media Mocking Trump Over ‘Child Sex Predators, Fentanyl Traffickers, Terrorists’
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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