Trump’s Reposting of Detainee Release Proposal and Comey Investigation Raise Questions About Equal Treatment Under Law

May 18, 2025

Overview

On May 17, 2025, President Donald Trump reposted a suggestion by legal commentator Mike Davis to release detainees near neighborhoods associated with U.S. Supreme Court justices following the Court’s ruling to block certain deportations under the Alien Enemies Act. Concurrently, Trump administration officials launched an investigation into former FBI Director James Comey over an Instagram post showing seashells arranged as “86 47,” which some interpreted as a threat against Trump, the 47th president. These events highlight how application of equal treatment under the law should treat both actions similarly as they involve high-profile figures and sensitive legal issues, raising concerns about political motivations, free speech, and judicial independence.

Facts

On May 16, 2025, the U.S. Supreme Court extended a freeze on deportations under the Alien Enemies Act, directing a federal appeals court to examine migrants’ claims and notification processes. Justices Samuel A. Alito Jr. and Clarence Thomas dissented.
On May 17, 2025, Mike Davis, a conservative legal commentator and head of the Article III Project, posted on X suggesting the release of detainees near Supreme Court justices’ neighborhoods in response to the ruling.
President Trump reposted Davis’s suggestion on May 17, 2025, via his verified Truth Social account, amplifying the proposal.
On May 15, 2025, former FBI Director James Comey posted an Instagram photo of seashells arranged to spell “86 47,” captioned “Cool shell formation on my beach walk.” The term “86” is slang for “to remove” or, in some contexts, “to kill,” per Merriam-Webster.
Comey deleted the post on May 15, 2025, stating, “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.”
On May 16, 2025, Homeland Security Secretary Kristi Noem announced that the Secret Service was investigating Comey’s post as a potential threat. Comey was interviewed voluntarily by the Secret Service on May 16, 2025, for about an hour at their Washington, D.C., field office.
Historical context: Trump fired Comey in 2017 during an FBI investigation into Russian election interference, and Comey has been a vocal critic of Trump since. The Supreme Court has faced increasing scrutiny over its rulings on Trump’s policies, including immigration.

Perspectives

President Donald Trump: Trump asserts that Comey’s “86 47” post was a deliberate call for assassination, stating, “A child knows what that meant… that meant assassination.” He supports aggressive investigations into perceived threats and has expressed frustration with the Supreme Court’s deportation ruling, implying justices obstruct his mandate.
Mike Davis (Article III Project): Davis argues that releasing detainees near justices’ neighborhoods would highlight perceived inconsistencies in judicial rulings that protect detainees’ rights while ignoring public safety concerns in less affluent areas. His proposal aims to pressure the judiciary to reconsider its stance.
James Comey: Comey maintains that his seashell post was not intended as a threat, assuming it was a political message. He emphasizes his opposition to violence and removed the post to avoid misinterpretation, seeking to de-escalate the controversy.
Homeland Security Secretary Kristi Noem: Noem views Comey’s post as a serious threat, stating on X, “Disgraced former FBI Director James Comey just called for the assassination of @POTUS Trump.”
Foundation for Individual Rights and Expression (FIRE): FIRE defends Comey’s post as protected political speech, arguing, “It neither constitutes a true threat nor merits federal investigation. 86 has a lot of possible meanings, and the idea that spelling it out in seashells is a true threat is quite a stretch.”
Georgetown University Law Professor David Cole: Cole contends that Comey’s post does not meet the legal threshold for a threat under legal standards, which requires subjective intent.

Considerations

President Trump’s reposting of proposals targeting justices’ neighborhoods raises concerns about judicial intimidation, potentially undermining the independence of the judiciary.
Investigating social media posts like Comey’s “86 47” tests the balance between free speech and national security, especially given the Supreme Court’s 2023 ruling requiring subjective intent for threat prosecutions.
Selective enforcement of laws against high-profile critics like Comey could erode public trust in equal treatment under the law, particularly amid polarized political climates.
Short-term political pressures may drive investigations, but long-term consequences include potential legal precedents that restrict or protect symbolic speech.
Some view the Supreme Court’s due process requirements as excessive given that migrants entered the U.S. without any process.
Heightened scrutiny of public figures’ social media posts may lead to fewer online expressions for fear of retribution.