The FBI proved Comey’s innocence. The DOJ indicted anyway.

From the outset, the most obvious hurdle to bringing the so-called seashells case against former FBI director James Comey—the case stemming from his May 15, 2025, Instagram post of a photograph of shells on a beach arrayed to form the digits “8647”—was proving that any reasonable, objective observer would consider what he did to constitute a threat on the life of the forty-seventh president.

The second most obvious hurdle was proving that Comey himself, as a subjective matter, regarded what he did to be a violent threat. Because threats are by their nature pure speech, proof of some subjective intent to threaten is constitutionally required in such cases. The constitutional minimum, according to the U.S. Supreme Court, is that the defendant act with “recklessness.” But in this case, both federal criminal offenses with which Comey was ultimately charged require much more than that. They require proof that the defendant acted “knowingly and willfully” to threaten to “take the life of … or to inflict bodily harm upon,” or “to kill” the president.  

So early on, those who saw—or were ordered to see—what Comey did in a criminal light developed a theory. The theory was that “86” was a widely known term within organized crime syndicates meaning “to kill,” and that anyone who had spent a lifetime in law enforcement, as Comey had, would have known that.

The stronger form of this theory—and this appears to have become the investigators’ working hypothesis—was that Comey had been provably exposed to the use of “86” as organized crime slang in the course of bringing cases such as United States v. Giovanni Gambino in the Southern District of New York. Comey was the lead prosecutor in the 1993 trial of that case, whose lead defendant was the boss of one of the era’s five New York mafia crime families.

The materials publicly filed in court in connection with Comey’s pretrial motions on July 27 and July 28 show that investigators diligently tracked the latter theory down for 11 months—and, basically, disproved it. They scoured FBI files, judicial case files, and trial transcripts, but found no evidence that Comey was actually exposed to the use of such slang.

Indeed, the FBI found precious little evidence to support even the weaker version of the theory—the speculation that, because such usages were supposedly commonplace, Comey must have been exposed to them. Upon examination, such usages did not, in fact, appear to be commonplace. Nevertheless, on April 28, 2026, federal prosecutors sought and obtained an indictment anyway.

Then investigators kept looking for evidence to back up the prosecution theory. The FBI tracked down two former FBI agents who worked on the Gambino case and even a notorious cooperating witness in that case, Salvatore “Sammy the Bull” Gravano, who had admitted involvement in 19 murders. But, again, they found zero direct evidence proving that Comey had ever been exposed to “86” as a slang term meaning “to kill.”

Eventually, shortly after the indictment, a man who seems to be the ultimate expert stepped forward. But for the defense.

On July 28, attorneys for Comey submitted a declaration from John Gleeson, a renowned former assistant U.S. attorney and, later, federal judge in the Eastern District of New York, who specialized in organized crime cases as a prosecutor. Gleeson offered his expert opinion that the theory behind the government’s seashells case was “preposterous.” After decades of investigating, prosecuting, and presiding over such cases, he wrote, he had never come across usage of “86” to mean “to kill” “in any way, shape, or form.”

Yet the seashells case lumbers forward.

This is the sad account of a shameful and vindictive prosecution, in which high-level Justice Department officials are plowing ahead against all credible evidence to punish an enemy of the president. It doesn’t get worse than this.

“It's a Hot Topic on the Plane” 

On May 15, 2025, Comey and his wife, Patrice, were walking along a beach on Emerald Isle, North Carolina, when he noticed an arrangement of shells forming the digits “8647.” At first Comey thought it was an address, he later told investigators, but then he realized it was a political message. His wife, who was a waitress in her youth, explained to him that “86” was restaurant slang for being “out of something” or “to dump or get rid of an item,” she would later tell investigators. At 1:56 pm, Comey took a photo of the shells. (All times are Eastern Time.)

Later, Patrice suggested to Comey that he post the photo on Instagram. At 3:12 pm, she texted Comey a screenshot of a Google search stating what “86” meant:

In U.S. slang, “86” means to get rid of or to refuse service. It’s often used in restaurants and bars to indicate that an item is out of stock or to bar a customer from being served.

Two minutes later, Comey posted the photo on Instagram, captioning it, “Cool shell formation on my beach walk.”

The post went viral. Some conservative voices claimed it was a call for violence against the president.

At 5:52 pm, Patrice received a text from an acquaintance the Comeys had not heard from in two or three years. In their recent motions, Comey’s attorneys have referred to this individual as Person-1. To guard this individual’s privacy, they have obscured their gender by using plural pronouns.

Person-1 criticized Comey’s post. In part, their text read:

You guys have gone off the deep end over the years with your TDS. “86 47” is a call for violence no matter how you spin it. … I hope you and Jim goes to jail for his crimes. [XP]

Patrice initially argued with Person-1. She sent them a text of an Amazon ad for “8647 Anti-Trump Funny T-shirt,” adding, “So sorry that you are misunderstanding that some people think Trump is a bad President. There is no call for violence.” (More than a year later, after charges had been brought, Comey’s lawyers would establish, through trial subpoenas, that more than 200,000 products had been offered for sale on Amazon between January 2017 and May 15, 2025, bearing the legends “8645,” “8646,” or “8647,” as apparent political commentary. Amazon had received no law enforcement inquiries or complaints about those products, its records custodian reported.)

A few minutes later, however, Patrice texted Person-1 again: “Now that you said what you said and I googled and saw the right wing narrative about the numbers, Jim will take down the post.”

Comey did take it down and, at 6:25 pm, sent out a new Instagram message:

I posted earlier a picture of some shells today on a beach walk, which I assumed were a political message. I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.

At 9:05 pm, a U.S. Secret Service agent left a voice message for Comey on his voicemail. Comey returned the message at about 9:15 p.m. They had a short, unrecorded interview and Comey agreed to meet the next afternoon, on May 16, for an in-person interview at the service’s Washington Field Office. An agent’s notes from the phone interview reflect Comey’s statements that he “did not realize the 86 meant anything violent” and he “didn’t mean anything threatening.”

The next morning, Trump, who was in Abu Dhabi, gave a lengthy interview on the television program “Fox & Friends.” With respect to the shells, he said this:

And [Comey] knew exactly what that meant. A child knows what that meant. If you're the FBI director and you don't know what that meant, that meant assassination. And it says it loud and clear. Now, he wasn't very competent, but he was competent enough to know what that meant. … [H]e’s calling for the assassination of the president.

At 10:33 am, the U.S. Secret Service announced an internal change in policy. “Effective immediately,” agents were instructed to treat “8647” as possible “coded threat language for “kill the 47^th president.”

12:03 pm, the Secret Service special agent in charge, who was traveling with Trump aboard Air Force One, asked the agents in Washington who would interview Comey if he could get “an immediate readout (call)” of the interview. “I am getting lots of questions,” the agent wrote in an email. “It is a hot topic on the plane and [Trump] is very interested.”

The interview occurred that evening from 5:50 to 6:34 pm at the Washington Field Office. Among those present, besides the investigating agents, were the Secret Service’s general counsel, its deputy chief counsel, the Department of Homeland Security’s general counsel, and an assistant U.S. attorney from the Eastern District of Virginia. Comey’s attorney, David Kelley, participated by phone on speaker.  

According to a redacted investigatory report, Comey said he had interpreted “86” to mean “ditch, dump, or replace,” and “viewed the message in a strictly non-violent manner.” He had not perceived that “people would have a dark way of taking his message.” He took the message down once his wife told him it was “being interpreted by some as a call to violence.” (Comey’s attorney Kelley, in a declaration filed in connection with one of Comey’s recent motions, asserted that one of the senior officials present “personally communicated to me his embarrassment at the amount of attention being paid to the matter.”)

By 9:26 pm, agents had sent the “executive summary” of the interview to the special agent in charge aboard Air Force One.

At 11:12 pm, the Secret Service discontinued the new policy, announced just that morning, of treating “8647” as a coded threat. “As we figured,” a senior official wrote, “this is a lot and we can’t, nor should be expected to document all of these references to 8647. We should go back to business as usual, unless someone is inciting violence along with those numbers or adding egregious and threatening language.”

A few minutes later, the assistant to the special agent in charge on the president’s detail circulated a congratulatory note to the investigatory team, whose tone suggested that he thought the matter had been put to bed. “[W]e were tasked with coming together to put out a fire,” he wrote. “You all contributed . . . to this issue being resolved.”

Giuliani: "I Didn't Know What it Meant"

The next morning, however, the investigators continued interviewing witnesses. Agents held an 11-minute, non-recorded telephone interview with Patrice Comey, beginning at 11:11 am. She told them that, based on her waitressing experience, 86 meant “out of something” or “get rid of an item in a nonviolent way,” such as “we’re 86 on broccoli.” She also related her exchange with Person-1.

In the early afternoon, agents had a brief, unrecorded telephone conversation with Person-1, and arranged for a longer, recorded, in-person interview on May 21. The records for the two are not completely consistent.

According to an agent’s one-paragraph summary of the telephone interview, Person-1 “immediately perceived the term ’86 47’ as a call to get rid of, in a violent way, or even to assassinate President Trump.”

That was not what he said in the longer recorded interview, however, according to portions quoted in the affidavit of Comey attorney Patrick Fitzgerald. (The audio file of that interview remains sealed.) According to Fitzgerald, Person-1 said: 

[M]y first initial thought was personally, I thought that the only way that I really heard 86 in my life before is when I used to work in restaurants in college and its like … out of something on the menu.

Person-1 then remarked that, as they thought about it more, and considered the fact that peaceful means of removing Trump, such as impeachment, were unavailable as a practical matter, they concluded that the shell array was a “call to violence.” In particular, they referenced having heard a podcast by Rudolph Giuliani the night before reacting to the Instagram post in which Giuliani had claimed, Person-1 related, that Comey worked on “specific mob cases” where

they had several logs of videotapes and stuff and phone calls saying, you know, we gotta 86 this guy  . . . That’s why I eventually reached out because I thought there was no shot in hell that this man who spent his life doing all the things that he’s done up to this point, prosecuting mob families in New York, … there’s no way he didn’t know how that was at least going to be interpreted by most people.

During this interview, Person-1 also evinced personal hostility toward Comey, according to Fitzgerald’s affidavit. They said they blocked Patrice’s telephone number after their May 15 text exchange; they said they objected to Comey’s son-in-law having prosecuting crimes stemming from the Jan. 6, 2021, Capitol riot; they expressed regret that they couldn’t offer the agents “something more” to make the Comeys “face consequences for this;” and they reiterated that “I hope Jim goes to jail” for the “crimes he committed.”

Person-1’s reference to Giuliani evidently related to the May 20 episode of “America’s Mayor Live,” where Giuliani had, indeed, claimed that Comey worked on cases where “86” had been used to mean “kill.”

But in a separate interview that same day, on Newsmax—as Fitzgerald’s declaration of July, 28, 2026 would later observe—Giuliani admitted (at timestamp 2:35) that he himself had not understood “86” to mean kill until he was “educated” on its meaning by his “boys:”

I’m gonna tell you the truth. If I saw it, I didn’t know what it meant until my boys told me. If I saw that [i.e., the shells on the beach], I would have rubbed it off with my feet. I thought it was a license plate number or something. Or somebody’s PIN number.

It was a telling admission from a man whose greatest claim to fame, prior to his role as mayor on Sept. 11, 2001, was having, as U.S. Attorney for the Southern District of New York, led the office that won Racketeer Influenced and Corrupt Organizations Act convictions in 1986 in the so-called Mafia Commission trial, targeting the heads of all five New York City organized crime families. Giuliani was acknowledging that he himself had never heard of this supposedly widely known mobster slang until his sons explained it to him shortly after Comey’s post, some 40 years later.

On May 21, 2025, assistant U.S. attorney Gabriel Diaz from the Eastern District of North Carolina informed the Secret Service that, as he put it, “I’ve been ordered to open this case in EDNC.”

By Fall 2025, the U.S. attorney’s office in Eastern North Carolina had begun trying to assemble proof that, as Giuliani and Person-1 assumed, Comey had been exposed to mobsters’ use of “86” as a synonym for “kill.” On Sep. 18, Diaz asked the FBI to search its Sentinel database for “any records,” including “training records,” or “any cases or investigations at any level” that involved use of the slang term “86” or “eighty-six” and that would have been “associated with former FBI Director James Comey.”

Agent responded five days later that the searches produced “inconclusive results.” He continued: “Additionally, the searcher was unable to identify if the subject would have had access or been exposed to any potential files meeting the search perimeters [sic].” So far as the letter reveals, the search did not unearth a single pertinent reference to “86”—whether or not linkable to Comey.

On Nov. 19, 2025, FBI case agent April Floyd asked the bureau’s New York Field Office to review the case file for United States v. Gambino. That case was brought in 1988 and went to trial in 1993, with Comey as lead prosecutor. She explained to the New York office that she was looking for evidence showing that the phrase “eighty-six” was associated with “putting a hit on someone for them to be murdered was revealed.”

The New York office reported back that its review of the file “did not yield any relevant returns.”

On April 2, Attorney General Pam Bondi was fired, reportedly, in part, for not being aggressive enough in pursuing Trump’s enemies. Nine days later, Fox News reported that Trump had huddled with Deputy Attorney General Todd Blanche the night of Bondi’s firing, discussing who should be Bondi’s successor, and commenting, “Here’s your audition.” In response to the article, the Department of Justice told Fox that, while Trump spoke to Blanche after Bondi’s firing, he informed him that he would only serve as acting attorney general until a successor was decided upon. 

On April 13, FBI agents interviewed Person-1—now 11 months after his Secret Service interviews. The audio file of the 27-minute recorded interview is sealed, but Fitzgerald, Comey’s attorney, quoted portions in his declaration of July 28.

But when I saw [the Instagram post], I quickly went through in my head like the term “86” to me that I am familiar with in my own life is in a restaurant right like when “something’s off the menu”… it’s “86’d” … you don’t serve it any more but pretty quickly my mind went to… I know he wasn’t trying to take Trump off the menu but if he was, like what would that mean, right, how would you get rid of “47” right now with both houses of Congress or Congress and the Senate being under Republican control? It couldn’t have been impeachment, it couldn’t have been all these things…

So like I just thought that there was a clear implication, whether a joke or whether you know trying to be sly that my perception was very quickly that well certainly Jim, coming up from you know his time in the Southern District of New York, being the district attorney there and prosecuting mob boss cases … that we have to know what that means and so it had to be something along those lines…

The FBI agent then asked Person-1 if their reference to the use of “86” in mob cases came from Giuliani’s podcast. He responded: “I don’t recall that specifically[,] but [it] also could be where what I just said about where 86 came from …  I believe that is true if I said it but I don’t remember that specifically.”

During this interview, Person-1 made a comment potentially relevant to credibility. They mentioned that they’d left a prior career after they went to “rehab.” Agents asked no follow-up questions about what Person-1 meant.

The next day, investigators resumed searching for proof that “86” was an organized crime term and that Comey knew it. First Assistant U.S. Attorney Phil Aubart and the FBI case agent requested a keyword search of transcripts of the 1993 United States v. Gambino trial.

By April 23, they had the results back for 25 transcripts: Zero responsive references for “eighty-six” and its variants.

By April 27, they’d gone through 36 transcripts. Still nothing.

At some point, according to Fitzgerald’s affidavit, they also searched a transcript of United States v. Salerno—the mafia commission case. (During Giuliani’s May 20, 2025 podcast—the one Person-1 listened to—Giuliani had claimed that usages of “86” to mean “kill” had surfaced at the Salerno trial.) Agents found no pertinent references.

Nevertheless, on April 28, prosecutors sought and obtained an indictment against Comey. It alleged that by posting the seashells photograph on Instagram, Comey had “knowingly and willfully [made] a threat to take the life of, and to inflict bodily harm upon, the President of the United States,” and had also “knowingly and willfully [transmitted] in interstate and foreign commerce a communication that contained a threat to kill the President.”

Gravano: Ask Gleeson

Despite obtaining an indictment, prosecutors seemed to recognize that they could never prove their case as matters stood. So investigators resumed their efforts to prove that “86” was organized crime lingo and that Comey knew it. Agents looked for surviving FBI agents who had worked on the Gambino case, finding two. They also started tracking down the notorious cooperating witness in the case, Gravano. In addition to having admitted 19 murders when he pleaded guilty to racketeering in 1992, Gravano had admitted bribing a juror at mobster John Gotti’s first trial, which ended in an acquittal. After finishing a prison term in 1995 and then leaving Witness Protection, Gravano had been convicted in 2002 on new federal and state narcotics charges. He was released in 2017 and was now on parole.

On May 6, FBI case agent Floyd conducted an unrecorded phone interview with one of the former agents on the Gambino case, who was retired but still doing contract work for the bureau. According to Floyd’s report, this former agent said he “was familiar with the term ‘86’ and used it and heard others use it throughout his life” but had “never understood the term ‘86’ to mean to kill.” He did not recall “any instance” of organized crime “subjects or sources” using the term that way.

Floyd then asked the retired agent about Gravano. The latter “cautioned” Floyd about Gravano’s “reliability,” if she was contemplating calling him as a witness. It appears that he then explained the reason for his concerns, but that line has been redacted from the public version of Floyd’s report.

A few hours later, Floyd telephoned the second FBI agent who also worked on the Gambino case. This individual, who was still an agent, described himself as “the last surviving member” of the unit, since disbanded, which had been tasked with investigating the Gambino crime family. So far as the unredacted portions of the investigative report reflect, the agent offered nothing of value, and simply promised: “to review some of his old cases and source reporting documents.”

The defense’s filings reveal that around the same time as these interviews, the agents questioned open-source artificial intelligence (AI) tools—including Google AI and ChatGPT—to try to establish that “86” was widely used mob lingo.

The tools reported some evidence of such usage, but not extensive. Asked whether “86 has ever been utilized to describe to kill?,” one AI tool responded, yes, “though this is far from its most common usage.”  It is “primarily known as being restaurant slang for being out of an item or as a bar term for ejecting a rowdy patron.” The term’s violent meaning did appear in two slang dictionaries, the tool reported, but it also noted—correctly—that the Merriam-Webster dictionary “does not officially enter this sense because it is relatively recent and lacks widespread use compared to its hospitality meanings.”

This AI tool also warned that the supposed origin of the term that Trump had referred to in a Truth Social post the day after the indictment was an “urban legend.”

There is an urban legend that the term originated from mobsters burying bodies “8 miles out and 6 feet under.” While experts at the Mob Museum state there is no documented evidence that the term began with organized crime, it has been used metaphorically to mean “eliminate” in crime fiction and film.

In other stray references, investigators found that the term had been used to mean “killed in action” by an Army specialist interviewed by the New York Times in 1991; to mean “kill” by a white supremacist, according to an unidentified 1990 article about his trial; and, likewise, to mean “kill” in a 2021 crime novel by James Ellroy.

On May 8, case agent Floyd spoke by phone with Gravano, the cooperating witness in the 1993 Gambino trial, and set up an in-person interview. Among all the leads they’d tracked down, Gravano came the closest to corroborating the investigators’ theory—but it was not very close. According to Floyd’s report for the telephone conversation, Gravano asserted that “86” was, indeed, organized crime lingo for killing someone. He opined “that based on the positions Comey held and the interactions Comey had with those involved with organized crime, there was no way he did not know that the term ‘86’ was used in the context of killing someone.” At the same time, Gravano said, he was “fairly certain it would be difficult to find the term ’86’ documented in law enforcement/FBI files because members of the organized crime families refrained from using” such terms “in the presence of law enforcement officers.”

Investigators conducted a 25-minute, in-person, recorded interview with Gravano on May 13. First Assistant U.S. Attorney Aubart flew to Phoenix to attend in person. The audio file is sealed, but Comey attorney Fitzgerald quoted portions in his declaration. Fitzgerald wrote:

… Gravano said that “86” generally means to “get rid of” and to him, as a “gangster,” it means “to kill.” …  Gravano did not recall discussing the term “86” with Mr. Comey during the Gambino trial or meetings in preparation for the trial. … Gravano noted that “it certainly wouldn’t be brought up by me.” … When asked for names of prosecutors who would be good for the government team to ask, Gravano described John Gleeson as a former prosecutor and judge who was “brilliant.” He added that an opinion “coming out of his mouth would be unbelievable.”

It’s unclear whether investigators ever did reach out to Gleeson, as Gravano urged.

But once Gleeson heard about the seashells indictment and the theory behind it, Gleeson, on his own, offered his services, according to a declaration he filed July 28. He reached out to one of Comey’s daughters, who was then working at a Manhattan law firm.

In his affidavit, Gleeson explained that he and Comey “are not friends and never were.” Comey had been a prosecutor in Manhattan, which is in the Southern District of New York, while Gleeson prosecuted cases in Brooklyn, in the Eastern District of New York. They were, therefore, rivals, in a sense, sometimes competing for the same evidence and disagreeing over strategy. In one instance, a “serious disagreement” between them had to be settled at the highest levels of the Justice Department. At the time Gleeson reached out to Comey’s daughter this year, he wrote, he had not communicated with Comey since 1993, so far as he could remember.

Gleeson began prosecuting mobsters in 1985, in the case of United States v. Aniello Dellacroce. It was a case against the then head of the Gambino crime family and nine associates, including John Gotti, then a captain. Over the next several years, until he became a federal judge in 1994, Gleeson personally tried 13 mob-related cases, including a second trial of Gotti, and oversaw the prosecutions of about 100 other mafia defendants. (In his May 20, 2025, podcast, Giuliani also referenced “the Gotti trial” as an example of a case in which “86” was supposedly used to mean “to kill.”)

Once Gleeson became a federal judge, he presided over still more organized crime trials, including the trial of Genevese family captain Michael Coppola in 2009 and that of two other organized crime figures in 2014. In 2022, Gleeson wrote a book about the Gotti trials.

In his declaration, Gleeson explained that gangsters often expect their phones to be wire-tapped and, therefore, usually do not speak freely in those conversations. The place to catch them speaking candidly, he wrote, was on “bugs”—electronic surveillance devices planted in locations where gangsters hang out. During the two Gotti trials, for instance, multiple court-authorized bugs were planted at notorious Gambino family hangouts, including the Ravenite Social Club on Mulberry Street in Manhattan and at the Bergin Hunt & Fish Club in Ozone Park, Queens.

Gleeson listened to many hours of tapes from those bugs, he recounted in his declaration filed in the seashell case, and also spent more than 500 hours debriefing cooperating witnesses in the course of building these cases.

In his experience, he wrote, the most common slang term gangsters used for “to kill,” by far, was “whack.” Sometimes, but not as often, they used “clip.” Some individual gangsters, including Gotti, employed euphemisms unique to them, like “piece of work.”

What about “86”—the term that lies at the heart of the case against Comey? In his affidavit (whose paragraphs are numbered), Gleeson writes:

36. The claim that ‘86’ is mafia jargon for ‘kill’ is preposterous. If it weren’t made in the context of seeking to deprive a man of his liberty, it would be laughable.

37. I have never come into contact with a single recorded conversation where a mafia member uses ‘86’ in any way, shape, or form, let alone to refer to killing or murder. Nor have I come into contact with any such reference to ‘86’ in my thousands of hours of debriefings and conversations with cooperating witnesses in mafia cases.

38. In short, in my expert opinion, there is literally no support for the central allegation on which the case rests.

On July 27, Comey moved to dismiss the case on the grounds that “no reasonable observer would understand the phrase ‘86 47’ to connote violence at all—let alone to threaten that Mr. Comey would commit violence against the President.” That motion is distinct from a separate motion to dismiss for vindictive and selective prosecution, which was filed the next day.

The “no reasonable observer” motion argues that the indictment, on its face, does not state a crime. The motion relies on the benign dictionary definitions of “86,” the benign context of the post, and other “common sense” reasoning that does not require looking outside the four corners of the indictment. It does not—and legally probably cannot—rely on the Gleeson affidavit, which introduces new facts that the government might contest by, for instance, calling their own expert witnesses, such as Gravano. Normally, contested facts must await trial to be resolved.

Nevertheless, after receiving the Gleeson declaration, prosecutors of good judgment and good will—who were not worried about losing their jobs—would drop this case.

Do Comey’s prosecutors envision a trial at which ex-gangster Gravano will serve as their star witness, speculating that Comey must have known and intended a violent interpretation of “86”? And will prosecutors now go forward with such a strategy, knowing that former prosecutor and retired judge Gleeson—whom Gravano himself advised them to consult as the ultimate expert—has volunteered to serve as Comey’s expert? And that Gleeson would testify that he had never come across, “in any way, shape, or form,” during his decades of investigating and prosecuting mobsters or presiding over their trials, the usage of “86” that prosecutors are pressing?

At such a trial, there could be no hope of a conviction. And if a conviction somehow came to pass, it would be a manifest miscarriage of justice.

Prosecutors need to end this horrendous abuse of the criminal justice system.