Amicus With Dahlia Lithwick | Law, justice, and the courts Racism’s Over and Seashells Can Be Deadly
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May 2, 2026 
Madiba Denny, voting-rights scholar critiquing originalism, and Barbara McQuade, former U.S. Attorney and law professor, discuss a shocking week for democracy. They examine the unlikely seashells-based threat prosecution, Todd Blanche’s politicized tactics, and the Supreme Court’s Louisiana v. Callais decision that reshapes Section 2 and invites racial mapmaking.
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True Threat Standard Blocks Seashell Prosecution
- Counterman v. Colorado raised the bar for prosecuting "true threats," requiring at least recklessness about communicating intent to inflict violence.
- Barbara McQuade says Jim Comey's seashell post, his immediate denial, and deletion make proving that mens rea highly unlikely.
Selective Prosecution Looks Strong For Comey
- Selective prosecution is a strong defense for Comey because many others used 8647/8646 imagery without charges.
- McQuade cites public examples like shirts on Amazon and Jack Posobiec's 8646 to show unequal enforcement.
Treat Long Delays As A Red Flag
- Watch timing and investigatory gaps as evidence of political motive when prosecutions are delayed long after the alleged act.
- McQuade notes Comey was interviewed the next day and the delay to indict almost a year later suggests cynicism.
