Washington, May 7, 2026, 18:02 EDT
Former FBI Director James Comey’s scheduled May 11 appearance in Greenville now hangs on whether he files a waiver by Friday, a federal judge in North Carolina said. That move offers a narrow, immediate shift in the case accusing Comey of threatening President Donald Trump. Comey had asked to forgo the hearing, having already surrendered and appeared before a Virginia judge near his home. The Justice Department backed that request.
The courthouse issue could soon be eclipsed by a tougher challenge: prosecutors are eyeing whether a deleted Instagram shot—seashells laid out as “86 47”—can be built into a criminal threat case. The indictment ties together a former FBI director, a president, and the First Amendment, with the question of intent shaping what’s next. Reuters
Judge Louise W. Flanagan stated in her order that the hearing is set unless a waiver gets filed. WCTI, referencing court records, also noted that Comey’s attorney still isn’t admitted in the district and has 21 days to submit a special appearance notice.
The Justice Department announced that a federal grand jury in the Eastern District of North Carolina has indicted Comey, 65, on charges of threatening the president and sending a threat across state lines—language that includes things like online posts. Conviction could mean up to 10 years in prison. Prosecutors emphasized the indictment is only an allegation; Comey remains presumed innocent.
Comey maintains he viewed the shells as a political statement, not incitement, and took down the post after realizing some interpreted it as threatening. Prosecutors counter that anyone aware of the context would reasonably regard the image as a genuine indication of intent to harm Trump, the 47th president.
Acting Attorney General Todd Blanche pushed back on the idea that the beach photo alone is driving the case. “This is about a body of evidence,” Blanche told NBC’s “Meet the Press.” He pointed to witnesses, documents, and other materials as ways to establish intent, but stopped short of detailing what that evidence actually is. Spectrum Local News
Legal scholars haven’t been convinced. David Hudson at Belmont University College of Law described the photo to Reuters as “bad taste” but ultimately “protected speech.” Clay Calvert, a First Amendment specialist with the American Enterprise Institute, pointed out that using seashells on a beach as a backdrop for a threat would be unusual. Reuters
John Keller, who previously led the Justice Department’s task force focused on threats to election workers, argued that “86” could mean different things and isn’t an obvious call for violence. Keller also pointed out that Comey’s decision to post openly on a public social media account made it less likely he was trying to send a threatening message. AP News
Slang can get messy. Merriam-Webster defines “eighty-six” as everything from refusing service to kicking someone out, firing, or simply removing something—a term with origins in restaurant and bar chatter. That fuzzy definition could turn out to be important for Comey’s legal team as they push their free-speech claims. Merriam-Webster
Still, prosecutors might try to expand their case. If they manage to produce evidence outside the Instagram post—whether that’s private chats, testimony, or other records—a judge could allow jurors to weigh whether Comey at least recklessly ignored the chance the image would be taken as a threat. That’s the risk facing the defense. Blanche, for his part, has hinted the government is holding more cards.
This marks the second time Trump’s Justice Department has pursued criminal charges against Comey. A previous case, which alleged he lied to Congress, was tossed out—so was a separate case targeting New York Attorney General Letitia James—after the judge ruled the prosecutor in both instances wasn’t legally appointed.
All eyes are on Friday’s waiver deadline. Should Comey submit the filing, Monday’s scheduled Greenville appearance would be called off, shifting the case toward arguments around intent, protected speech, and claims of selective prosecution. Without the waiver, the North Carolina hearing stays on the docket.
