On Wednesday, the Justice Department filed an argument seeking to “salvage” President Donald Trump’s case against former FBI Director James Comey, who stands accused of threatening Trump’s assassination by posting an image of seashells spelling “86-47” on social media. But according to some experts, the prosecutors advancing Trump’s position appear to misunderstand the legal meaning of key terms.

The case traces back to a photo Comey posted on Instagram in May 2025, showing seashells arranged on a beach to spell “86 47.” Comey deleted the post and said he did not know the numbers could be read as a call for violence — “86” is slang for getting rid of something, and “47” refers to Trump as the 47th president. Trump responded that Comey “knew exactly what that meant,” the Secret Service investigated, and prosecutors later brought charges.

As All Rise News editor-in-chief Adam Klasfeld noted, “Trump DOJ prosecutors appear to be shaky on the concept of what ‘actual malice’ means.” He made that comment alongside a screenshot from the DOJ’s motion, which argues that Comey’s defense team “fails to show actual malice,” claiming that “a defendant must prove with direct evidence ‘that the prosecutor charging him’ ‘harbored vindictive animus’ and that he pursued the prosecution ‘solely to punish’ the defendant for exercising his protected rights.”

The filing comes in response to the defense’s argument that Comey was illegally surveilled and that the case should be dismissed because of “vindictive and selective prosecution.” Comey’s attorneys wrote, “The ensuing indictment is not based on a good-faith application of the law to the facts; instead, it effectuates a years-long campaign by the president to use the criminal process to punish Mr Comey for his protected speech and because of the president’s deep-seated animosity.” The reference to a years-long campaign reaches back to May 2017, when Trump fired Comey as FBI director while Comey oversaw the bureau’s investigation into Russian interference in the 2016 election — a dismissal that prompted the appointment of special counsel Robert Mueller and years of public attacks from Trump.

The prosecution is now contending that the defense has offered no evidence of malice on Trump’s part. But “actual malice” is a legal term with a specific definition. According to Slate, which was defining the term in a different case involving Trump’s attacks on Comey in 2017, “actual malice” exists when a party either knows a statement is false or acts “in reckless disregard” of whether it is true. That standard originates in the Supreme Court’s 1964 decision in New York Times v. Sullivan, which governs defamation claims by public officials — a different body of law from the criminal vindictive-prosecution dispute now before the court.

Against that standard, Comey’s defense team says it has presented substantial evidence of the president’s hostility. First Amendment scholar Clay Calvert wrote that Trump has called Comey a “proven LEAKER & LIAR,” “weak and untruthful slimeball,” “total SLIMEBALL,” “DIRTY COP” and “corrupt piece of garbage.” Trump has also described Comey as “Shadey [sic],” “very sick or very dumb,” “crooked as hell” and “one of the worst human beings this Country has ever been exposed to.”

Calvert added that Trump has not only expressed animus toward Comey, but also openly called for criminal charges. He noted that Trump stated on X in 2018 that Comey “should be prosecuted.” Calvert also pointed to a September 2025 Truth Social post directed at then-Attorney General Pamela Bondi.

“Pam,” Trump wrote at the time. “Nothing is being done. What about Comey, Adam ‘Shifty’ Schiff, Leticia [James]??? They’re all guilty as hell, but nothing is going to be done ... We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW! President DJT.”

Comey’s lawyers argue that statements such as “corrupt piece of garbage” amount to evidence of vindictiveness. They contend the record shows “a direct admission that the decision to prosecute was not based on the DOJ’s good-faith application of law to facts. Instead, it was based on President Trump’s personal antipathy” toward Comey, which they say supports the claim of selective prosecution. The motion to dismiss remains pending, and the DOJ filing sets out the government’s response as the court weighs whether the case proceeds.

As Calvert concluded, “If Trump’s posts ultimately lead to the indictment’s dismissal, it will provide a cautionary tale about the dangers of running one’s vengeance-filled mouth on social media.”