An Obama-appointed judge just ruled a political group can keep displaying the "86 47" phrase that got the former FBI director indicted. The DOJ now has a ruling working against it.

By Samuel López | USA Herald

[Washington, D.C.] - A federal judge in Washington has handed the Department of Justice a quiet but potentially consequential setback — less than 5-months before the trial of former FBI Director James Comey is set to begin.

Comey faces federal charges for allegedly threatening the life of President Donald Trump with a photograph of seashells arranged to say “86 47” which he posted on Instagram and later deleted.

U.S. District Judge Randolph Moss, an Obama appointee, granted a temporary restraining order Monday barring the National Park Service from revoking the demonstration permit of Accountability NOW USA, a political activist group that has been flying a flag bearing the inscription "86 47" at an ongoing protest in the nation's capital.

Judge Moss's conclusion? That it is "difficult to fathom … that a reasonable observer would view the flag as a true threat."

But read that line carefully — because Moss is doing something deliberate and legally precise. He is not declaring that the phrase "86 47" is harmless. He is not ruling on the phrase itself. He is ruling specifically that the flag, as displayed in a public protest context, cannot be characterized as a true threat. It is a narrow legal finding — and Moss chose every word with a scalpel.

"The flag cannot be viewed as a threat" — but the judge said nothing about the phrase itself. That line may haunt prosecutors this October.”

The distinction matters enormously. Because five weeks ago, in North Carolina, Comey was indicted on a charge that rests almost entirely on the argument that "86 47" — when posted on social media — constitutes exactly that: a true threat.

"…a threat to take the life of, and to inflict bodily harm upon, the President of the United States, in that he publicly posted a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out '86 47', which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States."

— COMEY INDICTMENT, APRIL 2026 (18 U.S.C. § 871(A))

The Comey case and this civil dispute are legally unrelated. But the DOJ cannot ignore that a sitting federal judge — one whose opinion carries institutional weight — has now gone on record suggesting that a reasonable person would not view a flag with the inscription "86 47" as a true threat. Defense attorneys tend to notice things like that.

The Secret Service had launched an investigation into a volunteer with Accountability NOW USA after the group began displaying its flag. The DOJ submitted a declaration from Secret Service Deputy Director Matthew Quinn, who argued the phrase represents a "potential call for acts of violence directed at the President."

"Use of the statement '86 47' and other variations will be perceived as a potential threat against the protectee and as one that could incite others to engage in an unwanted outcome against the protectee."

— SECRET SERVICE DEPUTY DIRECTOR MATTHEW QUINN

Judge Moss heard those arguments and ruled for the protesters anyway.

The group says its demonstration exists to "call attention to the rise of fascism in the United States and demand the impeachment of President Trump." Their lawyers framed the flag as political speech, protected under the First Amendment. And on Monday, the court agreed — at least provisionally.

Acting Attorney General Todd Blanche, who announced Comey's charges last month, has argued publicly that Comey's Instagram post crossed the line between protected speech and criminal threat. Comey removed the photo after facing public backlash, but the indictment followed regardless. His trial is scheduled for October 21.

Now, prosecutors heading into that courtroom will do so knowing that another branch of the same federal government has already told the world it cannot "fathom" a reasonable person viewing this group’s flag with the ’86 47’ phrase as a true threat — even if that judge carefully stopped short of saying so about the phrase in isolation.

In the law, words matter. In this case, the words Judge Moss chose — and the ones he conspicuously chose not to use — may matter most of all.

WATCH:

Comey trial begins October 21. This ruling will be cited. Count on it.

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