James Comey indictment is now facing a dismissal bid after his lawyers asked a federal judge on Monday to throw out the case over an Instagram post showing seashells arranged as “86 47.” Prosecutors have said the image was a threat against President Donald Trump. The filing puts the case on track for a response from the Justice Department and, if it survives, a trial in October.
Comey’s Monday filing
Comey, the former FBI director, was indicted by a grand jury in the Eastern District of North Carolina in April. His lawyers told the court that no reasonable person aware of the context would read the post as violence, but instead as political hyperbole.
The defense said the case turns on “dictionaries, context, precedent, and common sense,” and argued that “a reasonable observer would still understand Mr. Comey’s post as mere political hyperbole, not a true threat.” They also wrote that “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.”
Justice Department response
The Justice Department has until Aug. 18 to respond to the dismissal motions. Comey’s team is expected to file a separate motion by Tuesday arguing selective and vindictive prosecution, keeping the case in the motion-to-dismiss stage for now.
Matthew Petracca first brought the case and has since moved off it. A separate Comey case over congressional testimony from 2020 was dismissed after a judge ruled Lindsey Halligan was unlawfully appointed. That earlier ruling is part of the backdrop to the current challenge, which Comey’s lawyers say turns on whether the government can treat a social media post as a crime rather than protected speech.
Trump comments cited
Comey’s lawyers pointed to several Donald Trump remarks in their filing, including comments about a video posted by Members of Congress that criticized military policy as “punishable by death” and a call for “hang[ing] them.” They also cited Trump’s 2016 campaign remark about “Second Amendment people” and his comments about Liz Cheney as a “radical war hawk,” followed by, “Let’s put her with a rifle standing there with nine barrels shooting at her, OK? Let’s see how she feels about it, you know, when the guns are trained on her face.”
In their filing, Comey’s lawyers said the Supreme Court has rejected threats prosecutions based on speech more direct than the seashell image. A federal judge in the District of Columbia separately said it was difficult to fathom how any reasonable observer would view an “8647” flag as a true threat, and the government has acknowledged there are circumstances in which those numbers would not count as a threat. The judge now has to decide whether this case is treated the same way, or whether the prosecution moves toward an October trial.
