Comey seeks dismissal of NC case tied to alleged Trump threat

Former FBI Director James Comey is asking a federal judge in North Carolina to dismiss a criminal indictment against him alleging that he threatened President Donald Trump with a social media post in 2025.

Comey argued in a court filing Monday that the post did not amount to a “true threat” against the president.

“[B]oth Counts of the indictment seek to punish Mr. Comey for a social media post expressing a political viewpoint,” his lawyers wrote in a motion to dismiss the indictment. “As a matter of law, that post was protected by the First Amendment and falls outside the scope of 18 U.S.C. § 871(a) and 18 U.S.C. § 875(c),” the two federal laws cited in the indictment.

Comey faces a Tuesday deadline to file other motions in the criminal case.

“This indictment targets protected speech at the heart of the First Amendment,” Comey’s lawyers explained in a memorandum linked to the motion. “Mr. Comey, an outspoken critic of President Trump, posted a photograph of seashells spelling out ‘86 47,’ a well-known political slogan that expresses opposition to the President. In fact, thousands of items featuring this slogan have been sold on the internet and are available to this day, and the slogan was commonly displayed at protests around the country in the months preceding Mr. Comey’s post.”

“But the government now singles out Mr. Comey to prosecute one of the President’s most prominent critics for publishing another person’s statement of political opposition,” the memo continued. “That attempt to suppress core political speech contravenes both the statutes at issue and the First Amendment.”

“To justify this prosecution, the indictment alleges that Mr. Comey’s ‘86 47’ post constitutes a ‘true threat’ on the President’s life,” Comey’s lawyers wrote. “That claim is contradicted by every possible source of meaning: dictionaries, context, precedent, and common sense. ‘86’ simply means ‘get rid of’ or ‘eject’ and has no violent connotation except in the most uncommon usages. Most dictionaries do not even list the meaning — ‘to kill’ — that the government now proposes.”

“And when combined with ‘47’ — slang for President Trump, the forty-seventh President — ‘86’ becomes nothing more than a call to oppose President Trump,” the memo added. “Thus, in this context, 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.”

“Even under the least charitable interpretation of Mr. Comey’s statement, it would not constitute a true threat — i.e., a serious expression of Mr. Comey’s intent to harm the President,” Comey’s lawyers wrote. “Some of Mr. Comey’s critics, including the President, have claimed that the post should be implausibly read as a veiled call for other people to act violently. But even if that were a viable interpretation (and it is not), that still would not make the post a true threat — the only crime alleged in the indictment.”

“Instead, such a statement would constitute what the Supreme Court has recognized to be protected political hyperbole,” the memo continued. “And such a hyperbolic appeal to others would not remotely qualify as an incitement to violence — an offense the indictment does not charge in any event. The true-threat theory thus fails under an objective reasonable observer test as a matter of law. Courts have regularly dismissed indictments alleging statements far more ‘threatening’ than Mr. Comey’s social media post, and the same result is warranted here.”

“Because the indictment targets and chills core political speech and fails as a matter of law, it must be dismissed at this juncture,” Comey’s lawyers added. “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. And it would invite future prosecutions by the Executive Branch against perceived political enemies for their opposition to the President.”

Comey signaled in a July 13 motion that he planned to target his indictment as an example of  both “selective” and “vindictive” prosecution. His lawyers asked a federal judge for permission to submit a single brief addressing both issues. A local court rule requires separate briefs on each issue unless the judge grants the motion, according to the court filing.

Carolina Journal reported in June that Michael Dreeben, a former US deputy solicitor general with more than 100 arguments before the US Supreme Court, is one of six new lawyers added to Comey’s defense team in North Carolina. The new lawyers joined former Chicago-based US Attorney Patrick Fitzgerald, who took Comey’s case in May. Fitzgerald “is best known for his role as special prosecutor in the investigation into a CIA leak that brought charges against I. Lewis ‘Scooter’ Libby,” according to a September 2025 NBC News report.

Comey is scheduled for arraignment on Sept. 30 in New Bern. A trial is scheduled on Oct. 21 before US District Judge Louise Flanagan.

Flanagan issued a May order delaying proceedings in the case. Comey’s arraignment had been scheduled June 30, with a trial to follow on July 15.

“The gravity of the charges, anticipated further discovery production to defendant, and the need to provide defendant time to file motions based upon same promote need for continuance,” Flanagan wrote. “Implicit in the government’s reported statement of no opposition here is the government’s agreement that the ends of justice served by this continuance, for direct benefit of defendant, outweigh the interests of the public in a speedy trial.”

Comey’s lawyers filed a motion on May 20 to push the arraignment back to October.

“Mr. Comey expects to file multiple motions on constitutional grounds seeking dismissal of the indictment,” his lawyers wrote. “Some of these motions may be dependent upon the discovery to be produced by the Government, and may require extensive briefing. Discovery is still forthcoming from the Government. For that reason, Mr. Comey respectfully requests that the Court extend the current scheduling deadlines.”

Comey faces two charges related to alleged threats against Trump. The charges are based on a 2025 Instagram post in which Comey documented seashells on a beach arranged to spell out “86 47.”

The slang term “86” means “to throw out,” “to get rid of,” or “to refuse service to,” according to Merriam-Webster.com. Trump is the 47th American president.

Comey appeared in a Virginia federal courthouse on April 29, the day after his indictment.

The indictment charges that Comey “knowingly and willfully made a threat to take the life of, and to inflict bodily harm upon the President of the United States.”

While in the “Eastern District of North Carolina,” Comey “publicly posted a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out ‘86 47,’ which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States,” according to the indictment.

A second count charges that Comey “knowingly and willfully did transmit in interstate and foreign commerce a communication that contained a threat to kill the President, Donald J. Trump, specifically.”

“Threatening the life of the President of the United States is a grave violation of our nation’s laws,” US Acting Attorney General Todd Blanche said in a news release. “The grand jury returned an indictment alleging James Comey did just that, at a time when this country has witnessed violent incitement followed by deadly actions against President Trump and other elected officials. The temperature needs to be turned down, and anyone who dials it up and threatens the life of the President will be held accountable.” 

Comey is charged with threatening the president in violation of 18 U.S.C. § 871(a) and transmitting a threat in interstate commerce in violation of 18 U.S.C. § 875(c). He faces a maximum penalty of 10 years in prison if convicted.

The since-deleted social media post prompted a backlash last year. “Cool shell formation on my beach walk,” Comey wrote along with the photo of the arranged sea shells in the sand.

“I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message,” Comey wrote in a later Instagram post. “I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.”

The North Carolina case was the Justice Department’s second indictment of Comey in seven months. In September 2025 he faced an indictment on charges that he lied to and obstructed Congress during testimony in 2020. That case was dropped when a judge concluded that the prosecutor handling the case had been appointed illegally.

“Comey seeks dismissal of NC case tied to alleged Trump threat” was originally published on www.carolinajournal.com.