Slate Daily Feed Amicus With Dahlia Lithwick | Law, justice, and the courts - Racism’s Over and Seashells Can Be Deadly
May 2, 2026
Madiba Denny, voting-rights scholar and author, explains how a recent Supreme Court ruling reshapes Section 2 and invites map-drawing that can entrench racial disenfranchisement. Barbara McQuade, former U.S. Attorney and law professor, analyzes politicized DOJ moves like the Comey seashell charge and the SPLC indictment, and warns about prosecutorial tactics and accountability questions.
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Prosecutions Used As Political Theater
- The DOJ under Todd Blanche is prosecuting politically charged cases that lack strong legal merit to signal loyalty and energize a political base.
- Barbara McQuade explains Blanche can 'win by losing' because publicity and allegiance matter more to this administration than convictions.
True Threat Standard Likely Defeats Seashells Charge
- Counterman v. Colorado sets a high mens rea standard for true threats, requiring at least recklessness about communicating an intent to inflict unlawful violence.
- McQuade argues Comey's seashell 8647 Instagram post, deleted and apologized for, lacks the necessary serious-expression and mens rea to satisfy that standard.
Use Selective Prosecution Defense Against 8647 Charges
- Raise selective prosecution as a defense when similarly situated people using the same symbolism (like 8646/8647 merchandise or other public figures) are not charged.
- McQuade points to abundant examples including Trump and merch sellers to show disparate enforcement.
