Former FBI Director James Comey asked a federal judge on Monday to dismiss criminal charges over an Instagram post featuring seashells arranged to read “86 47,” arguing the image constitutes protected political speech rather than a threat against President Donald Trump.
Comey’s legal team filed a motion in the Eastern District of North Carolina contending that no reasonable person, given the relevant context, would interpret the seashell arrangement as a suggestion of violence. The term “86” is widely understood in restaurant terminology to mean “out of” or “get rid of,” while Trump is the 47th president.
The indictment, handed down in April 2026, charges Comey with two counts: making a threat to take the life of the president and transmitting a threat in interstate commerce. The prosecution stems from the May 2025 Instagram post, which Comey deleted shortly after posting, writing at the time: “I didn’t realize some folks associate those numbers with violence. I oppose violence of any kind so I took the post down.”
Comey’s attorneys argue in court filings that “the Supreme Court has rejected threats prosecutions based on speech far more directly threatening than Mr. Comey’s seashells post here.” They contend that prosecuting him would itself constitute an unconstitutional punishment of free speech and that the government is attempting to “suppress core political speech” by singling out the former FBI director, a prominent Trump critic.
The case represents the second criminal prosecution of Comey in months. An earlier indictment in Virginia, accusing him of lying to Congress in 2020 testimony, was dismissed in November 2025 after a judge found the prosecutor was illegally appointed. That case had been brought by Lindsey Halligan, a Trump ally with no prior prosecuting experience.
The seashells case has drawn significant scrutiny from legal experts. In April, when the indictment was announced, constitutional law professor Jonathan Turley stated that if Comey were charged for the shell picture, it “would face a monumental challenge under the First Amendment.” A federal judge in the District of Columbia separately ruled in a related case that it was “difficult to fathom how any reasonable observer” would view the “8647” numbers as a true threat, even as the government itself conceded during oral arguments that there were circumstances in which those numbers together wouldn’t constitute a threat against the president.
The Supreme Court’s 2023 decision in Counterman v. Colorado established that to prosecute someone for a true threat, the government must prove the defendant had some subjective understanding that their statement would be interpreted as a threat. Legal analysts have noted the Comey indictment appears to fall short of this standard, as Comey has consistently said the opposite and deleted the post upon learning of the interpretation.
Matthew Petracca, the lead prosecutor who initially brought the case, moved off the prosecution in May 2026. The Justice Department has until August 18 to respond to Comey’s motion to dismiss. Comey’s legal team is expected to file a separate motion arguing the case is the product of selective and vindictive prosecution by the Trump administration.
The case is scheduled to go to trial in October 2026 if the dismissal motion fails. Comey has said the prosecution illustrates Trump’s “bottomless desire” for revenge, pointing to his role overseeing the early months of the 2016 campaign investigation into whether Trump’s team had coordinated with Russia.
Sources
- NBC News — Comey’s motion to dismiss, legal arguments, and Supreme Court precedent on true threats
- PBS News — Comey’s legal strategy and First Amendment protections for political speech
- Washington Post — Supreme Court precedent analysis and Chief Justice Roberts standard for genuine threats
- Fox News — Legal expert commentary on First Amendment challenges
