James Comey makes first court appearance after 2nd DOJ indictment

Retired judge and former Fox News analyst Andrew Napolitano said the case against former FBI Director James Comey is unlikely to ever reach a jury, arguing it is protected speech under the First Amendment.

“I don’t think this case will ever see a jury,” Napolitano said during an appearance on Newsmax’s “Wake Up America.” “There’s no crime here under several Supreme Court opinions.”

Napolitano pointed to legal precedent suggesting that speech cannot be prosecuted if it can be interpreted in a non-criminal way.

“The more important legal principle is free speech,” he continued. “If there is any non criminal interpretation of the speech that trumps…the criminal aspect. So are there other meanings to 86 47 besides, 'I want to kill the president?'”

He also argued that the timing of the charge undermines the case, noting the post in question was made well before the indictment.

“If this were a real threat to the president of the United States, Comey would have been charged a year and a half ago,” Napolitano said.

Napolitano called the case “frivolous” and predicted it would ultimately be dismissed by the courts.

“I think Comey’s people will move to dismiss it, that it’s protected speech, and I think that motion will be granted,” he said. “This is so frivolous that Comey could actually end up getting his legal fees reimbursed by the government.”

Rep. Ted Lieu, D-Calif., criticized the indictment of former FBI Director James Comey, calling the case an “assault on the First Amendment” in a post on X.

“The ludicrous case… brought against Comey is an assault on the First Amendment. DOJ will lose,” Lieu wrote.

“I think we should ‘throw out trump, get rid of trump, refuse service to trump,’” Lieu continued. “What I just said is absolutely protected by the Constitution. No different than 86 47.”

Lieu also shared a Merriam-Webster reference addressing the meaning of “eighty-six,” noting the term originated as 1930s soda-counter slang meaning an item was sold out. The entry also defines the term as “to throw out,” “to get rid of” or “to refuse service.”

The Justice Department has said threat cases are evaluated based on context, intent and evidence, and not every statement results in criminal charges.

The Justice Department said not every instance of posting “86 47” would lead to criminal charges, emphasizing that threat cases are evaluated based on context, intent and evidence.

Acting Attorney General Todd Blanche addressed the question during a press conference as scrutiny grows over the indictment of former FBI Director James Comey tied to a social media post featuring the numbers.

“Every case is different, every threats case is different,” Blanche said. “That means the nature of the threat, the person who makes the threat, and the investigation around the threat.”

Blanche said charging decisions depend on the specific facts uncovered during an investigation, cautioning against drawing conclusions based on similar-looking statements alone.

“It would be ill advised for anybody to compare a particular statement to another statement that appears similar when there has been a thorough investigation,” Blanche said. “Every time there is a threat against the president, it doesn’t necessarily lead to an indictment. It depends on the investigation. It depends on all kinds of factors.”

“People should be very wary of threatening the life of President Trump because that is a crime,” Blanche added.

Former Trump advisor Alina Habba defended the indictment of former FBI Director James Comey during an appearance on ABC’s “The View,” arguing his social media post featuring “86 47” crossed a line.

“I do,” Habba said when asked whether the post rose to the level of a criminal threat. “He is a former FBI director. He knows what ‘86 47’ meant. There’s no question about it.”

Habba argued that public figures carry added responsibility in how they communicate, particularly in the current political climate.

“We all have a very big voice,” she said. “This is an FBI director. We have responsibilities – You guys have responsibilities – not to call the president certain things or say things that could incite violence.”

She pointed to a separate case in which a person was charged after posting a similar phrase directed at her, saying such language can carry legal consequences.

“A gentleman posted that about me. He posted on Twitter, ‘86 Habba,’ and he was also charged,” she said. “He was charged in Florida and he was held accountable because you cannot do it.”

Habba also pushed back on criticism that the case is politically motivated, saying the Justice Department brings legitimate cases.

“The Department of Justice brings real cases,” she said. “We are not Jack Smith. We are not Letitia James. We bring real cases.”

Comey has denied wrongdoing and is facing charges tied to the social media post, which prosecutors argue could be interpreted as a threat against President Donald Trump, the 47th president.

President Donald Trump said the phrase “86” is commonly used as a term meaning “kill” as he reacted to charges against former FBI Director James Comey tied to a social media post featuring seashells arranged to read “86 47.”

Speaking to reporters, Trump was asked whether he believed Comey was endangering his life when he posted “86 47” on social media.

“Well, if anybody knows anything about crime, they know 86…it's a mob turn for kill him,” he said, referencing mobster movies. “The mobster says to one of his wonderful associates, ‘86 him.’ That means kill him.

“I think of it as a mob term. I don't know, people think of it as something having to do with disappearing,” Trump continued. “But the mob uses that term to say when they want to kill somebody, they say, ‘86 the son of a gun.’ I'm trying to keep the language nice and clear. They don't use that term son of a gun. They use another term. But that's a mob term for kill them.”

The reporter pressed Trump further on whether he believed his life was in danger when Comey posted the image of seashells reading “86 47.”

“Probably, I don't know. You know, based on what I'm seeing, yeah,” he said. “You know, Comey is a dirty cop. He's a very dirty cop. He cheated on the elections. He tried to help Hillary Clinton, as you know…He's a dirty cop. He's a crooked man.”

Former FBI Director James Comey's first court appearance for his latest federal indictment ended on Wednesday without him making a plea.

Judge William Fitzpatrick informed Comey of the charges against him, saying the two counts both carry up to five years in prison.

The first count is making a threat against the President of the United States, the second is interstate transmission of a threat against the President of the United States.

There was no arraignment, and Fitzpatrick did not set any conditions for Comey's release, aside from removing any firearms from Comey's household.

Comey did not speak during the court session, but his attorney, Patrick Fitzgerald, says he plans to submit motions in federal court alleging vindictive and selective prosecution.

Fox News' Jake Gibson contributed to this report.

Former FBI Director James Comey has self-surrendered at a federal courthouse in Northern Virginia, according to a pool report from NBC News.

Comey is facing his second federal indictment in recent months, this one based on a May 2025 Instagram post in which he shared the message "86 47."

Prosecutors argue the post constituted a threat to kill President Donald Trump.

Acting Attorney Todd Blanche stated that the indictment against former FBI Director James Comey is "not an audition" for the top job at the Justice Department on Wednesday.

Blanche made the statement during an interview with CBS News, going on to say he was "absolutely, positively not" directed or asked by President Donald Trump to pursue the indictment.

“I don’t audition for this job,” Blanche told Garrett. “I’ve been the deputy attorney general for over a year, OK? This is not an audition.”

“Of course not,” Blanche added when asked whether Trump asked for the indictment. “Absolutely, positively not, and there’s no suggestion that that’s the case that happened, and the fact that we’re doing our work –– this is not something that just happened in the past couple weeks. This is something that has been investigated for nearly a year now, and the results of that investigation is that a grand jury returned an indictment.”

Rep. Dan Meuser, R-Pa., suggested on Wednesday former FBI Director James Comey may be guilty of "dangerous speak" after making an Instagram post with the message "86 47."

Meuser made the statement during an interview with NewsNation as Comey was expected to make his first court appearance in northern Virginia on Wednesday.

“Hey, look, you know, when the former FBI director writes in the sand, 86-47, which means, kill the 47th president, that’s concerning. So, see what the intent is? You know something, Blake? There’s something called dangerous speak. Dangerous speak means it’s worse than hate speak,” Meuser told NewsNation's Blaker Burman.

“It means it invokes in others the desire to carry out violent acts. And what James Comey put out, yeah, that could certainly be interpreted to mean to carry out violent acts,” he continued.

Sen. Jim Banks, R-Ind., joined Fox News to discuss the fresh indictment against former FBI Director James Comey on "America Reports."

Banks argued that Comey "totally abused his power" while serving as the chief of the FBI.

This is an excerpt from an opinion article by Fox News contributor Jonathan Turley.

In the last year, coverage of former FBI Director James Comey appears to be reverting to the level of a high school yearbook. Last March, we were discussing how Comey channeled Beyoncé in a classified meeting and then may have revealed a code name in an encore performance for family. Now we are back to discussing Comey's beach shell art on social media.

The latter controversy is now at the heart of a second criminal indictment of Comey. In November, a court dismissed the first indictment for false statements after a challenge to the status of the acting U.S. attorney.

However, this indictment is being brought in North Carolina, the location of the beach where the offending shells were found. Comey will now likely create a new category of protected shell speech.

The problem with this indictment will be the merits. The indictment concerns an image that was later removed by Comey showing "86 47" in shells on a beach. Comey has a rather odd history of drawing inspiration from shells. This message, however, had a lethal twist since many interpreted the message as essentially calling for the killing or "86-ing" of Trump.

Comey insists that he did not make the shell art and that he only posted it to his more than 1 million followers on X. He was merely the captive of his shell muses.

For over a decade, I have been one of Comey's most vocal and consistent critics. I have dozens of columns criticizing his excesses and the damage that he has done to our system.

For that reason, I would prefer to crawl into one of Comey's conversant shells than write a column supporting him. However, here we are. The fact is that I believe that this indictment is facially unconstitutional absent some unknown new facts.

To convict Comey, the Justice Department will have to show that his adolescent picture was a "true threat" under 18 U.S.C. § 871 and § 875(c). It is not.

The First Amendment is designed to protect unpopular speech. Popular speech rarely needs protection. It also protects bad and hateful speech. It even protects lies so long as those lies are not used for the purpose of fraud or other criminal conspiracies.

Legal questions are emerging over whether charges against former FBI Director James Comey would withstand a First Amendment challenge as he is indicted for a social media post allegedly tied to threats against President Donald Trump.

Comey faced charges Tuesday under 18 U.S.C. § 871, which criminalizes threats against the president, and 18 U.S.C. § 875(c), which covers interstate communications containing threats to harm others. 

George Washington University law professor Jonathan Turley told Fox News Digital just before the indictment was released that, if the case is based solely on the widely circulated image posted by Comey, it could face steep constitutional hurdles.  

"If Comey is charged for the shell picture, it would face a monumental challenge under the First Amendment," Turley said. "In my view, the image itself is clearly protected speech. Absent some other unknown facts or elements, it would be unlikely to survive a threshold constitutional challenge."

Both statutes require prosecutors to prove not only that a statement constituted a "true threat," but that it was made knowingly and with intent, standards that legal analysts say could prove difficult to meet based on publicly available information.

The indictment was filed Tuesday in the Eastern District of North Carolina, where Comey allegedly posted the image of seashells forming the numbers "86 47" during a beach walk. 

Others pushed back on the idea that the case raises significant First Amendment concerns, arguing that threats against a sitting president fall squarely outside protected speech.

"The third assassination attempt against President Trump on Saturday made this crystal clear: The Justice Department must prosecute those who threaten to assassinate the president," said Mike Davis, founder of the Article III Project.

"No one has a First Amendment right to do this. No one is above the law, especially not a former director of the FBI who should know better. A jury of James Comey’s peers will decide his fate."

This is an excerpt from an article by Fox News' Morgan Phillips.

Former FBI Director James Comey is expected to self-surrender to authorities in northern Virginia and make his first court appearance in his latest federal indictment on Wednesday.

The Justice Department handed down Comey's indictment on Tuesday, charging him with threatening President Donald Trump.

The charges related to a May 2025 Instagram post in which Comey shared an arrangement of sea shells spelling out "86 47." Prosecutors argue the post constitutes a threat to kill the president.

Comey is charged with "knowingly and willfully making a threat to take the life of, or inflict bodily harm upon, the President of the United States and knowingly and willfully transmitting a communication in interstate and foreign commerce that contained a threat to kill President Donald Trump," according to the indictment.

Both charges, released Tuesday by the DOJ, carry up to 10 years in prison. The move follows a wave of criticism from Republicans and Trump administration officials who viewed Comey's post as a veiled threat.

"I think it's fair to say that threatening the life of anybody is dangerous and potentially a crime threatening the life of the president of the United States will never be tolerated by the Department of Justice," Acting U.S. Attorney General Todd Blanche told reporters during a news conference without going into specifics of the case.

"While this case is unique and this indictment stands out because of the name of the defendant, his alleged conduct is the same kind of conduct that we will never tolerate and that we will always investigate and regularly prosecute," he added. 

Fox News' David Spunt contributed to this report.