Former FBI Director James Comey is urging a federal judge to dismiss a criminal indictment that accuses him of threatening to kill President Donald Trump, arguing the case is not supported by "dictionaries, context, precedent, and common sense."
Comey's legal team contends that an Instagram post, which featured seashells arranged in the sand to form the numbers '86 47,' did not constitute a "true threat" against Trump, a requirement for a criminal indictment. They assert that the phrase '86 47' is a "well-known political slogan that expresses opposition to the president," and therefore falls under protected political speech guaranteed by the First Amendment.
According to the filing submitted to the Eastern District of North Carolina, "no reasonable observer" would interpret the post as a threat of violence, "let alone threaten that Mr. Comey personally would commit violence against the President." Comey's lawyers characterized the post as "mere political hyperbole, not a true threat."
The case stems from a post Comey made over a year ago on Instagram, showing seashells arranged on a beach. He captioned the image "Cool shell formation on my beach walk." The post quickly drew backlash, and Comey removed it. Comey has maintained that the charges are a result of political animus and Trump's desire for retribution against critics.
In April, Trump had criticized Comey's post, suggesting that the number 86 is a "mob term for 'kill him.'" Trump is the 47th President. Pressed on whether the post made him fear for his life, Trump responded, "Probably, I don't know."
The number 86 is generally understood as slang for removing or getting rid of something, and can also imply killing. Comey's wife has reportedly associated the term '86' with her past experience as a restaurant server, where it means to remove an item from the menu.
Comey faces a federal trial in October. This is the second time in as many years that Comey's lawyers have sought to dismiss federal criminal charges brought against him during Trump's second presidential term. In September, Comey was indicted in the Eastern District of Virginia on charges of lying to Congress and obstruction related to testimony he gave in 2020. Those charges were dismissed in November by a federal judge who ruled that the attorney who brought the case, Lindsey Halligan, was unlawfully appointed.
Comey and Trump have been publicly adversarial since Trump's first presidential term, when Trump fired Comey in 2017. Comey has since become a prominent critic of Trump, detailing his criticisms in a memoir and congressional testimonies.
If convicted in the current case, Comey could face up to a decade in prison and fines up to $250,000. It remains unclear when the judge in North Carolina will rule on the motion to dismiss. However, a federal judge in Washington, D.C., recently ruled that demonstrators whose flag bore the same '86 47' message were not required to remove it, stating that "no reasonable observer could have viewed" the phrase as a threat to the president's life or safety. Legal experts have echoed skepticism about the charges, with one law professor calling the indictment an "embarrassment."