From a Simple Beach Photo to Felony Charges
James Comey went for a walk on a North Carolina beach last May, came across some seashells arranged in the sand to read ‘86 47,” took a photo, and posted it to Instagram. He deleted it after people pointed out that some interpret ‘86” as a call for violence. He said he didn’t know. He apologized. He moved on.
The Justice Department did not.
Eleven months later, Comey was indicted again. During that time, he was interviewed by the Secret Service, investigated by DHS, indicted on different charges that were later thrown out because the prosecutor had been unlawfully appointed, and then brought before a second grand jury.
This is not really about Comey. Many people have had many opinions about James Comey, and at one time or another, they have probably all been accurate. That’s not the point.
The point is what this case illustrates about how the system works — not for former FBI directors, but for everyone.
The Grand Jury and What It Actually Does
The phrase “indict a ham sandwich” comes from a 1985 observation by New York Chief Judge Sol Wachtler. He meant it as a critique: grand juries, which exist to screen charges before trial, almost never say no to prosecutors. The standard for indictment is probable cause, which is a low bar. The grand jury hears only what the prosecutor presents. There is no defense, no cross-examination, no adversarial process.
The result is that being indicted tells you very little about whether a crime was actually committed. It tells you that a prosecutor decided they wanted to indict. That’s almost always sufficient.
In the Comey case, the first attempt failed — an unusual outcome — partly on procedural grounds involving the appointment of the prosecutor. A second grand jury, in a different jurisdiction, then returned an indictment on the same underlying facts. Two felony counts, for beachcomber photography.
How the System Finds You When It Wants You
When the system wants you — for whatever reason — it can usually get you. Not necessarily to a conviction. Not necessarily to a trial. But to an arrest, an indictment, and the long expensive stretch of time between those events and resolution.
That stretch is what most people don’t understand about criminal cases until they’re in one.
Acting Attorney General Todd Blanche went on television and, when asked repeatedly whether people buying or selling ‘86/47” merchandise available all over Amazon and eBay needed to worry about prosecution, said repeatedly that they did not. He was dismantling his own case on morning television. That’s how thin it is.
And yet: two felony counts. A federal indictment. An attorney on retainer. Motions to be filed, hearings to be attended, press inquiries to be managed, and a case that has to be lived with, every day, indefinitely, until it resolves.
Comey will probably be fine. He’s a former federal prosecutor. He has resources. He has prominent legal counsel. The case will likely collapse the way the first one did — quietly, on a procedural motion, with a press release nobody reads.
Being fine takes time. It costs money. It means living under a federal indictment while your attorney files motions and the government decides whether to keep going or find a softer way to lose. The process is already doing its work regardless of how it ends.
What Comey Is Doing Right
Comey is a lawyer. He spent decades as a federal prosecutor. He knows exactly what defendants who talk do to their own cases.
So he hired prominent criminal defense counsel and went quiet. He appears on morning news shows every week. He discusses the politics he believes are driving the case. He does not discuss the case itself, the facts, the evidence, or what he did or didn’t know about a particular arrangement of seashells on a North Carolina beach.
His defenders say he should stand up and fight. Announce that it’s wrong. Tell the world what he knows. Make his case in public.
Being right as a defendant has very little to do with what happens next in a courtroom. Courts are not in the business of vindicating the people who were most correct about their rights. They are in the business of processing cases.
The time to announce your innocence, assert your rights, and explain the political vendetta behind the charges passed the moment law enforcement first asked to speak with you. From that moment forward, nothing you say can help. Everything you say carries the risk of making your situation worse.
The Part That Never Makes the Morning Shows
Most people who end up in that interval — the months between indictment and resolution, when everything is pending and nothing is certain and the meter is running — are not former FBI directors.
They do not have a prominent criminal attorney on speed dial. They do not have a publicist managing the optics. They have a situation that moved faster than they expected and a strong instinct to explain themselves to anyone who will listen.
The instinct is understandable. It is also one of the most reliable ways to make a bad situation significantly worse.
Get a lawyer. Let them do the talking — in court, on the record, where it actually matters. Everything else is noise that can and will be used against you later.
If You Are Facing Charges in Washington State
The interval between a criminal accusation and its resolution is when cases are won and lost. What you say, who you say it to, and when you say it shapes everything that comes after. An experienced criminal defense attorney manages that interval in your interest.
Matthew Knauss is a criminal defense attorney in Washington State. He represents clients facing criminal charges throughout the Greater Seattle area. The time to call is before you say anything else.
425-300-5566 