Former FBI Director James Comey appeared in federal court Wednesday for his first court appearance in a criminal case in which prosecutors allege he threatened President Donald Trump through a social media post featuring the numbers “86 47.” The case was charged in North Carolina Tuesday, and Comey made the brief appearance at the federal courthouse in Alexandria, Virginia, where he lives, without speaking or entering a plea, according to the Associated Press.
The Justice Department’s case centers on Comey’s Instagram photograph last year that displayed “86 47,” which prosecutors say the public would understand as a threat because “47” refers to Trump as the 47th president. Prosecutors contend the numbers amounted to a threat, while Comey has said he assumed the numbers reflected a political message and removed the post after seeing some people interpret it as a violent call.
The indictment is the second in roughly a year involving Comey and Trump-related fallout from Comey’s prior role in the federal Russia investigation, AP reported. The earlier case—on unrelated false statement and obstruction charges—was dismissed by a judge last November. Now, AP said, prosecutors pursuing the threats case face the added challenge of proving that Comey intended to communicate a true threat, or at least recklessly disregarded the possibility that his statement would be understood as such.
AP reported that the indictment accuses Comey of acting “knowingly and willfully,” but it uses sparse language that, according to legal experts cited by AP, does not itself spell out evidence of intent. Acting Attorney General Todd Blanche declined to elaborate on what evidence the government would use to show intent, AP said. Blanche also defended the prosecution at an unrelated news conference Wednesday, telling reporters that the case would ultimately be for a jury to decide.
During Wednesday’s appearance, defense attorney Patrick Fitzgerald previewed arguments his team is expected to raise, including that the prosecution is vindictive and selective. Fitzgerald also said the defense would seek communications relevant to a motion related to that argument, AP reported. A U.S. magistrate judge, William Fitzpatrick, rejected the government’s request to impose conditions on Comey’s release, calling them unnecessary.
AP also laid out how courts have treated threats under the First Amendment. The Supreme Court has held that statements are not protected if they qualify as a “true threat.” Prosecutors, AP reported, must show at a minimum that a defendant recklessly disregarded the risk that a statement could be perceived as a threatening expression of violence, and that the defendant had some subjective understanding of the threatening nature of his statements, a requirement the Supreme Court set out in a 2023 decision.
The reporting also described how the Supreme Court has treated hyperbolic political speech as protected. In a 1969 case involving a Vietnam War protest, AP said the justices found that a protester’s remark—“If they ever make me carry a rifle the first man I want to get in my sights is L.B.J”—did not constitute a knowing and willful threat where the context, including laughter from the crowd, suggested it was not a serious threat. AP further reported that Merriam-Webster lists “86” as slang meaning “to throw out,” “to get rid of” or “to refuse service to,” with a more recent sense of “to kill” noted but not fully adopted, alongside a warning about recency and sparseness of use.
Comey’s own statements about the post were also central to the dispute. AP reported that Comey deleted the Instagram post shortly after it was made, saying, “I didn’t realize some folks associate those numbers with violence” and “I oppose violence of any kind so I took the post down.” AP said Trump, speaking Wednesday at the Oval Office, argued that he believes his life was “probably” in danger, adding that “86” is a mob term for “kill him.”
Outside the courtroom, AP reported competing views on what prosecutors may need to prove. John Fishwick, a former U.S. attorney in the Western District of Virginia, said prosecutors will likely try to argue that, as a former FBI director, Comey should have understood what the terms meant and said them publicly “out to the whole world as a threat to the president.” Fishwick said such an approach would still be challenging in light of Comey’s First Amendment defenses, and he noted that Comey was interviewed by the Secret Service last year and was not charged with making a false statement, which Fishwick said suggests prosecutors do not have evidence Comey lied to agents.
AP also cited Jonathan Turley, a George Washington University law professor, who wrote in an opinion piece published Tuesday that the indictment raises “troubling free speech issues” and that the analysis “must” be governed by the Constitution. Turley said, AP reported, that the indictment is unlikely to withstand constitutional scrutiny and that a different outcome would allow the government to criminalize “a huge swath of political speech.” Tucker and Richer reported from Washington.