The Justice Department filed its opposition to James Comey’s motions to dismiss the seashell case late Tuesday, you know, the one where federal government is seriously prosecuting the former director of the FBI for sharing a picture of shells arranged into the numbers “86 47,” calling the social media post a violent threat against Donald Trump. And in this filing, the government’s most detailed defense of its own indictment yet, is a sentence so confident it loops right back around to embarrassing.
“There is no serious dispute that an objective viewer of Comey’s post could read it to mean ‘Kill President Trump.’”
Are they fucking for real with this one? There’s literally nothing but dispute over the meaning of the phrase. This case is generating explainers, dictionary usage notes, and active federal litigation. Plus a federal judge has ALREADY RULED that “86 47” doesn’t mean a violent threat against Trump!
While the seashell case was pending, a progressive group called Accountability NOW USA flew an “86 47” flag at a permitted, round-the-clock anti-Trump demonstration on Constitution Avenue. The Secret Service opened an investigation, the National Park Service threatened to revoke the group’s permit, and when the group sued, DOJ lawyers marched into court armed with a sworn declaration from a Secret Service deputy director insisting the phrase would be perceived as a potential threat against the president. Sound familiar?
U.S. District Judge Randolph Moss was unmoved. He granted a temporary restraining order on June 1, then made it a permanent injunction on June 29, holding that the flag — like the signs flying beside it — was “core protected speech.” He found it “difficult to fathom” that a reasonable observer would read the flag as a true threat, and pointed out that the government had produced no evidentiary basis whatsoever for the claim that the phrase endangered anyone.
Sure, Judge Moss’s ruling isn’t binding in a precedent sense, but it sure as shit undermines the government argument that there’s “no serious dispute” over the meaning of “86 47.” A sitting federal judge weighing the identical phrase, hearing the government’s identical argument, and rejecting it in a written opinion is, definitionally, a serious dispute. You cannot lose this argument in front of an Article III judge in June and declare it indisputable in August.
It gets worse when you notice who isn’t being prosecuted. The slogan is plastered across protest flags, yard signs, and an ocean of merch, and the DOJ has charged exactly one human being over it, and SHOCKER! it’s the one Donald Trump has spent the better part of a decade demanding be jailed. Asked point-blank whether the department would start prosecuting everyone who posts “86 47,” acting AG Todd Blanche allowed that “every case is different.” Which is a roundabout way of admitting the phrase is ordinary political speech… except, apparently, when Comey is the one posting it.
Listen, the charges live or die on whether a numeric caption under a beach photo is a “true threat,” a question of definitions, connotation, and plain reading comprehension. It is, at its core, a semantics case. And the government has now demonstrated, in a filing, that it cannot accurately describe the state of a semantic dispute unfolding in dictionaries, in courtrooms, and on a flag a mile from Main Justice.
Earlier: DOJ Just Got Mossed On ’86 47′ Legal Theory
Todd Blanche Goes Full ‘What Sea Shellgate Case?’ Now That Everyone’s Making Fun Of Him
James Comey Indicted For Playing With Sea Shells In New Low Point For DOJ Integrity
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1