Comey seeks dismissal of seashells threat case

Former FBI Director James Comey asked a federal judge Monday to dismiss an indictment accusing him of threatening President Donald Trump, arguing that prosecutors are trying to criminalize protected political speech over an Instagram photo of seashells arranged to read “86 47.”

Comey’s lawyers said the case rests on a phrase that does not amount to a true threat and that forcing him to stand trial would itself violate the First Amendment. Prosecutors have alleged that a “reasonable recipient” would view the seashell image “as a serious expression of an intent to do harm to President Trump.”

Comey faces two charges of threatening to kill the president. He briefly posted the image to Instagram last year, then deleted it. Trump is the 47th president, and Comey has said he believed the shell formation conveyed a political message. In May 2025, he said he did not realize the numbers might be associated with violence and removed the post because “I oppose violence of any kind.”

“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,” his defense team wrote. “And it would invite future prosecutions by the Executive Branch against perceived political enemies for their opposition to the President.”

The lawyers argued that “dictionaries, context, precedent, and common sense” undercut the government’s theory. They said the term “86” means “to get rid of” or “eject,” and “has no violent connotation except in the most uncommon usages.” NBC News reported that the term is widely understood as a restaurant phrase meaning to be out of something.

Comey’s attorneys also said that even if the post could be read to imply violence, a reasonable observer would understand it as political hyperbole, not a true threat. “The Supreme Court has rejected threats prosecutions based on speech far more directly threatening than Mr. Comey’s seashells post here,” they wrote.

The filing is the first of several expected defense motions seeking dismissal of the charges. Comey’s team is also expected to argue that the prosecution is selective and vindictive. The Justice Department has until Aug. 18 to respond to the dismissal motions, according to NBC News. If the case survives the legal challenges, NBC News reported, it would go to trial in October. CBS News reported that Comey is set to be arraigned in late September and has said he is innocent.

The defense cited other uses of “86,” including by former Republican Rep. Matt Gaetz of Florida in response to the removal of several GOP leaders from their roles. NBC News also reported that a federal judge in the District of Columbia separately ruled it was “difficult to fathom how any reasonable observer” would view an “8647” flag flown by protesters on National Park Service land as a true threat, and that the government conceded in oral arguments that the numbers together would not always be considered a threat against the president.

Comey’s lawyers pointed to Trump’s own legal arguments in a separate criminal case, writing that, as Trump’s team had argued, an “indictment must be dismissed” when it “seeks to criminalize core political speech and advocacy that lies at the heart of the First Amendment.”

Comey has been a frequent target of Trump over his role in the FBI investigation into Russian meddling in the 2016 presidential election. He was also indicted last year in a separate case involving testimony he gave to Congress in September 2020, but a judge dismissed those charges after finding that the prosecutor who pursued the indictment had been improperly appointed. The Justice Department has appealed that decision.