Feds counter Comey arguments in 100+ pages of new filings

The federal government countered legal arguments from former FBI Director James Comey in more than 100 pages of new filings Tuesday in a North Carolina federal court. Comey faces charges that he threatened President Donald Trump with a 2025 social media post.

The US Justice Department is challenging Comey’s accusations that his social media message did not amount to a “true threat” against Trump and that he is the victim of “vindictive” and “selective” prosecution. Tuesday’s court filings also object to Comey’s motion to suppress FBI search warrants and to open up details of grand jury proceedings in his case.

Comey’s legal problems started with a May 2025 Instagram post showing seashells arranged to spell “86 47.” He posted the message while on the beach in North Carolina.

“The Court can easily deny Defendant James B. Comey, Jr.’s motion to dismiss for purported lack of a true threat,” wrote Assistant US Attorney Timothy Severo. “At this stage, the issue presented is not whether Comey’s ‘86 47’ post constituted a true threat against the President—though the United States maintains that it did. Rather, the issue presented is who should answer the ‘true threats’ question in the first instance. Comey seeks to take the question away from the jury before the government presents any evidence (or even allegations setting forth its theory of the case, given the conventional short-form indictment). No authority supports his attempt to short-circuit these proceedings.”

“Whether a statement constitutes a true threat depends on what the statement objectively conveys to the person on the other end, given all relevant factual context,” Severo added. “In a criminal prosecution, the government must also prove that the speaker was subjectively aware that others could regard his statements as threatening. And in this case, these requirements must be considered in light of the Supreme Court’s recognition of the overwhelming interest in allowing the President to perform his duties without interference from threats of violence.

A separate brief countered Comey’s claims of vindictive and selective prosecution.

“To prevail on a vindictive prosecution claim at this stage of the proceedings, Comey must show actual (as opposed to presumptive) vindictiveness,” the US Justice Department court filing explained. “That means actual, objective evidence that he was prosecuted for exercising a legal right. Comey cannot do that. To the contrary, Comey does not allege (let alone show) that the prosecutorial decisionmakers in this case had improper motives. Instead, he speculates that they were induced by others with improper motives. But legally, that attenuated chain cannot establish actual vindictiveness. And factually, it is simply false—no matter how many speculative news stories Comey cites.”

“Comey’s selective prosecution claim fails for largely the same reasons, and because Comey cannot show that others similarly situated were not prosecuted,” the court filing continued. “Whether or not a statement is a true threat depends heavily on context, and here the context is unique.”

“Among other reasons, at nearly the same time as the post in question, Comey published a novel where the antagonist successfully persuades his followers to kill his political rivals by communicating coded messages online,” federal government lawyers wrote. “Needless to say, Comey does not and could not point to similar evidence in any comparator case—let alone a threat against the sitting President of the United States.

US Attorney Ellis Boyle filed an affidavit explaining his approach to the case after his appointment in August 2025, almost three months after Comey’s social media post.

“No one ordered, directed, or pressured me or my office to continue the investigation,” Boyle wrote.

“Leading up to the decision to present the evidence to the grand jury, the prosecution team reviewed all evidence collected up to that point,” Boyle added. “In consultation with the prosecution team in my office, I came to the determination that the evidence supported a finding that Defendant James Comey committed the threat offenses under 18 U.S.C. §§ 871(a), 875(c), and that a jury could find that beyond a reasonable doubt.”

“In reaching that determination, the prosecution team in my office considered only the facts and evidence the investigation uncovered,” according to Boyle’s affidavit. “The prosecution team did not act with animus nor was it in any way motived by animus in making this determination.”

“In making the determination, I did not feel pressured, coerced, or motivated in any way from any individual,” Boyle wrote. “I made that determination independently. I did not receive a direction, command, or suggestion to seek an indictment against Comey for any crime.”

A separate court filing objected to Comey’s motion to disclose grand jury proceedings in his case.

“Comey comes nowhere close to making the strong showing of particularized need required to overcome the robust presumption of regularity to which grand jury proceedings are entitled or to justify breaking the secrecy of the grand jury proceedings in this case,” Severo wrote.

“The two ‘independent grounds’ that Comey argues justify disclosure of grand jury materials do nothing of the sort,” the court filing added. “First, neither of his motions to dismiss creates any inference that irregularities in the grand jury proceedings warrant dismissal. Comey’s vindictive and selective prosecution arguments concern the decision to indict, not the presentation to the grand jury. And in any event, in trying to show that animus ‘infected’ the line prosecutor’s presentation, Comey relies only on a theory of imputed animus that the Fourth Circuit has not adopted and indeed, in similar contexts, has already rejected.”

“Even if Comey’s imputed-animus theory were plausible, the facts that Comey marshals in support of his argument do not suggest such animus caused any fatal irregularity in the grand jury proceeding,” Severo added.

A final court filing Tuesday rejected Comey’s motion to suppress two FBI search warrants and to hold a “Franks hearing,” which allows a judge to decide whether a law enforcement officer lied or acted recklessly to get a search warrant.

“Defendant accuses the FBI agent of intentionally or recklessly omitting material facts and making false statements necessary for the magistrate to find probable cause,” according to the federal government brief. “Here, the Government simply presented facts and some rational investigative deductions to the magistrate who was free to accept or reject any interpretation as probative. The agent did not say anything untrue or inaccurately misled the magistrate.”

Comey’s lawyers filed a dozen documents in the case on July 28.

The defendant is asking US District Judge Louise Flanagan to dismiss a criminal case charging him with threatening Trump. Comey filed an initial motion to dismiss the case based on the argument that the seashells post did not amount to a “true threat” that could be prosecuted.

A second motion to dismiss argued that Comey is being targeted by vindictive and selective prosecution. Comey’s lawyers are also seeking to suppress evidence, and they have filed a motion to disclose information about the grand jury proceedings that led to Comey’s indictment.

An affidavit from Comey lawyer Patrick Fitzgerald, a former Chicago-area US attorney, suggested that Comey faced physical and electronic surveillance in 2025 as he was driving home to Virginia from North Carolina along Interstate 95.

On May 15, 2025, Comey posted a “photograph of someone else’s seashell arrangement spelling out ‘8647,’” Fitzgerald wrote. Afterward, a woman approached the house where Comey was staying, “shouting and gesturing profanely.” Comey then called the local police chief and left a voicemail notifying him about the “controversy over his post.”

Within a couple of hours, Comey faced a phone interview with a US Secret Service agent.

“Discovery reveals that the next day, the Secret Service conducted both physical surveillance and electronic surveillance of Mr. Comey (namely, the real-time tracking of his cellphone’s location) as Mr. Comey and his wife drove from North Carolina home to Virginia, where he was to be interviewed a second time,” Fitzgerald wrote. “The Government obtained no warrant or court order for the electronic surveillance.”

“The Comeys were also physically surveilled during the trip,” Fitzgerald noted.

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.

Among the affidavit’s other revelations was information about the government’s investigation into whether the number “86” also refers to violent acts. The government consulted law enforcement officers with gang-related experience.

On May 8, a government agent interviewed Salvatore “Sammy the Bull” Gravano, a high-profile “former Gambino crime family underboss,” according to Fitzgerald’s affidavit. “Mr. Gravano stated his belief that Mr. Comey had to know what the term ‘86’ meant ‘as it related to killing someone.’”

Comey’s lawyers made their case in a separate memorandum for rejecting the “vindictive” and “selective” prosecution of the former FBI director.

“The indictment must be dismissed under two bedrock legal doctrines,” Comey’s lawyers wrote. “First, the government instigated this prosecution based on Mr. Comey’s protected speech and to vindicate the President’s animus towards Mr. Comey, in violation of First Amendment and due process principles. Second, the government engaged in selective prosecution, in violation of equal protection principles.”

“Dismissal of federal criminal charges under these doctrines has historically been rare,” the memo continued. “That is because for decades the DOJ’s independence and integrity have guarded against the use of the criminal process to punish enemies or settle political scores. The prosecutions of Mr. Comey mark a sharp break from that tradition. Ample objective evidence — much of which comes directly from government officials’ own public statements and admissions — establishes that the President’s animus toward Mr. Comey led to this vindictive and selective prosecution.”

The motion to suppress accused government officials of “misleading the issuing magistrates about fundamental facts of the case” when seeking search warrants.

“According to the affidavits submitted by the government in support of those warrants, Mr. Comey’s Instagram post was a ‘true threat’ against President Trump, a crime punishable by imprisonment, because Mr. Comey’s experience prosecuting organized crime in the Southern District of New York would have made him aware that the term was a call for violence against the President,” according to a memo supporting the motion. “The inference that Mr. Comey was exposed to a supposedly violent alternative meaning of ‘86’ during his prosecutorial days was thus central to the government’s probable cause showing.”

“But the affidavits supporting the applications for those warrants — sought and issued ten and twelve months after the Instagram post, respectively — omitted facts known to the affiant that eviscerated that theory,” Comey’s lawyers wrote.

A separate motion questioned the grand jury process that led to Comey’s indictment.

“The record in this case raises a significant risk that irregularities in the grand jury process influenced the grand jury to return an indictment,” Comey’s lawyers alleged in a memo.

“[T]he circumstances surrounding the return of the indictment in this case indicate that the government may have misstated key factual and legal issues to the grand jury,” according to the memo. “Despite the absence of any true threat of violence in Mr. Comey’s social media post depicting seashells arranged to state a common political slogan, the government sought a prosecution here in response to President Trump’s vindictive campaign against political enemies.”

“Facing mounting pressure from the highest levels of the Department of Justice to indict Mr. Comey and persistent failures to find any evidentiary support for the government’s core factual theory, the government misrepresented and omitted key relevant facts to obtain further search warrants,” Comey’s lawyers alleged.

Comey aruged that the disputed social media 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.

“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 is scheduled for arraignment on Sept. 30 in New Bern. A trial is scheduled on Oct. 21.

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.”

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.”

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.

“Feds counter Comey arguments in 100+ pages of new filings” was originally published on www.carolinajournal.com.