Former FBI Director James Comey wants a federal judge to throw out the criminal case against him for posting a photo of seashells on Instagram. His lawyers filed a motion to dismiss the indictment in the Eastern District of North Carolina, arguing the post was constitutionally protected political speech and not a credible threat against President Donald Trump.
The case centers on an image Comey posted and later deleted showing seashells arranged to form the numbers "86 47." Federal prosecutors allege those numbers amount to a call to assassinate Trump, the 47th president. Comey faces two charges for threatening the president, Breitbart reported. It marks his second federal indictment during Trump's second term.
The legal question is sharp: does a former FBI director posting cryptic numbers on social media cross the line from political expression into a true threat? Comey's defense team says no. The Justice Department says yes. And the answer will test the boundaries of First Amendment law in a case already tangled with years of personal and political hostility between the two men.
Comey's attorneys laid out their First Amendment argument in the pretrial motion, contending that no reasonable person would interpret the post as a genuine threat of violence. The Washington Examiner reported that the defense team framed the prosecution itself as a constitutional violation, even if Comey were ultimately acquitted at trial.
"Forcing Mr. Comey to stand trial for a statement opposing the President, even if he is ultimately acquitted, would itself be an unconstitutional punishment of free speech."
The defense motion went further, arguing the phrase "86 47" simply does not carry the meaning prosecutors assigned to it.
"No reasonable observer would understand the phrase '86 47' to connote violence at all, let alone to threaten that Mr. Comey personally would commit violence against the President."
Comey has also apologized for the post, telling investigators he did not know "86 47" was associated with violence and assumed it conveyed a political message, Newsmax reported.
The case has drawn skepticism from legal analysts across the ideological spectrum. National Review's Andrew C. McCarthy, a former federal prosecutor and no ally of Comey's, wrote that the indictment lacks constitutional merit. McCarthy argued that "86 47" was not a true threat to assassinate the president "in light not only of common sense but also the Supreme Court's jurisprudence on actionable threats and protected speech under the First Amendment." He predicted the case will not reach trial.
That assessment lines up with the view of other former Justice Department officials. John Keller, a former senior DOJ official, told the Associated Press that the ambiguity of the term "86" works in Comey's favor.
"Here, 86 is ambiguous, it doesn't necessarily threaten violence and the fact that it was the FBI Director posting this openly and notoriously on a public social media site suggests that he didn't intend to convey a threat of violence."
The prosecution faces a high burden under Supreme Court precedent. To sustain a threat charge, the government must prove the defendant intended to communicate a true threat, not merely that someone could interpret the words as threatening. Posting an image on a public Instagram account, legal experts noted, cuts against the idea that Comey was secretly signaling violent intent.
The case has already seen procedural turbulence. The lead prosecutor in the seashell case asked to be removed as trial preparations advanced, raising questions about internal confidence in the government's theory.
President Trump has offered his own interpretation of the seashell post, one far less forgiving than what legal analysts have described. Trump told reporters that the meaning of "86" is plain.
"If anybody knows anything about crime, they know 86, it's a mob term for kill him."
That reading drives the prosecution's theory. Federal prosecutors allege Comey's post constituted a coded call to assassinate the sitting president. The indictment was brought in the Eastern District of North Carolina, where Judge Louise Flanagan, a George W. Bush appointee, has set an October 21 trial date.
Comey's attorneys had earlier sought to delay the proceedings. They filed to postpone his June 30 arraignment to the October court term and push back the original July 15 trial date, citing the need to prepare multiple constitutional challenges. Their filing stated bluntly that Comey "expects to file multiple motions on constitutional grounds seeking dismissal of the indictment."
A federal judge granted that delay in an earlier ruling, opening the door for the First Amendment challenge now before the court.
The First Amendment motion is not the only arrow in Comey's legal quiver. His defense team has also signaled plans to argue that the entire prosecution is vindictive and selective, driven not by legitimate law enforcement but by Trump's personal grudge against the man who once led the FBI.
In a separate motion reported by the New York Post, Comey's lawyers filed a 60-page appendix documenting Trump's public attacks on Comey dating back to 2017. Those attacks include Trump calling Comey a "weak and untruthful slime ball." The defense contends this record proves genuine personal animus, not dispassionate prosecutorial judgment.
Comey's attorneys wrote in that filing that "the government has singled out Mr. Comey for prosecution because of his protected speech and because of President Trump's personal animus toward Mr. Comey."
The defense also challenged the legitimacy of the prosecutor who obtained the indictment. Comey's lawyers argued that U.S. Attorney Lindsey Halligan was unlawfully appointed by the Trump administration within 48 hours of Trump posting on Truth Social, pressuring Attorney General Pam Bondi to go after political opponents.
Their filing stated: "When no career prosecutor would carry out those orders, the President publicly forced the interim U.S. Attorney to resign and directed the Attorney General to effectuate justice against Mr. Comey."
Comey has not been shy about criticizing Trump publicly, even as his legal exposure has grown. He called Trump "nuts" in a public broadside while federal charges loomed, a move that signaled defiance but also guaranteed the political temperature around the case would keep rising.
The seashell case is Comey's second federal indictment during Trump's second term. The first charged him with making false statements to Congress and obstruction of justice. Comey pleaded not guilty to both counts. A federal judge in the Eastern District of Virginia dismissed that indictment, handing the Justice Department a loss before the case ever reached a jury.
That earlier dismissal looms over the current prosecution. If the government could not sustain charges built around alleged lies to Congress, skeptics ask, can it prove that a photo of seashells on a beach constitutes a credible assassination threat?
The pattern of aggressive prosecution followed by judicial rejection has drawn attention from former intelligence officials and legal observers who see a broader campaign against Trump's perceived enemies. Former CIA Director John Brennan, another figure in Trump's crosshairs, has sued the Trump administration in a separate legal action over the preservation of investigation records.
Judge Flanagan now faces a question that sits at the intersection of criminal law and constitutional principle. The Supreme Court's precedent on true threats requires more than offensive or alarming speech. The government must show the speaker intended the statement as a genuine expression of intent to commit violence, or at minimum knew the recipient would interpret it that way.
Comey's defense rests on the argument that an ambiguous Instagram post, made publicly by a former law enforcement official, fails that test on its face. The prosecution rests on the claim that "86" is a well-known slang term for killing someone, and that pairing it with "47," the number of the current president, leaves little room for innocent interpretation.
Authorities have not publicly confirmed whether any evidence exists that Comey took steps beyond the social media post, or whether the Secret Service assessed the post as a genuine security concern at the time it was published. Investigators will need to determine whether the totality of circumstances supports the government's theory or whether the case collapses under the weight of First Amendment scrutiny.
The October 21 trial date stands for now. But if the motion to dismiss succeeds, the case will end before a single juror is seated.
Whether you think Comey is a political martyr or a man who got caught saying the quiet part out loud, the legal system will have to answer a question that matters well beyond this defendant: how far the government can stretch a threat statute before the First Amendment snaps it back.
