Former FBI Director James Comey’s legal team filed motions this week calling charges that he threatened President Trump’s life “preposterous,” arguing that his May 2025 Instagram post of seashells arranged as the numbers “86 47” is protected political speech under the First Amendment.
In a motion filed July 27, 2026, Comey’s lawyers contended that the indictment returned against him in April “targets and chills” political speech and should be dismissed because it does not allege he made a true threat, according to CBS News. “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,” the defense wrote.
Comey faces two federal charges: threatening to kill the president and transmitting a threat in interstate commerce. Prosecutors have alleged that a “reasonable recipient” would interpret the seashell formation as “a serious expression of an intent to do harm to President Trump,” according to court documents cited by CBS News.
Comey’s defense team argued in the July 27 filing that the phrase “86” — a slang term meaning “to get rid of” or “eject” — “has no violent connotation except in the most uncommon usages,” per CBS News. The lawyers cited examples of the phrase being used by other political figures, including former Republican Rep. Matt Gaetz, in non-violent contexts. Even if the post could be read to imply violence, they contended, it would be recognized as political hyperbole, which is protected speech.
On July 29, 2026, Comey’s team filed a second motion to dismiss, this time accusing the Department of Justice of vindictive and selective prosecution, according to reporting from the Carolina Journal and Bloomberg Law. The filing alleged that investigators omitted key facts and distorted others, and accused the U.S. Secret Service of conducting surveillance of Comey after the post, according to CBS News.
The indictment stems from a photograph Comey briefly posted to Instagram in May 2025, which he deleted soon after. At the time, Comey said he believed the shell formation was communicating a political message and did not realize the numbers might be associated with violence. He stated, “I oppose violence of any kind,” according to CBS News.
Comey has been a frequent target of Trump’s criticism due to his role as FBI director during the investigation into Russian meddling in the 2016 presidential election, which was launched during Trump’s first term. He was previously indicted in a separate case involving testimony he gave to Congress in September 2020, but those charges were dismissed when a judge found the prosecutor who pursued the indictment had been improperly appointed.
The case touches on murky legal territory regarding what constitutes a “true threat” under the First Amendment. Federal law permits prosecution for true threats — statements where the speaker means to communicate a serious intent to harm — but courts have long recognized that political hyperbole and protected speech cannot be criminalized. Comey’s legal team is betting that the seashell post falls into that protected category, not genuine threatening speech.
Comey is set to be arraigned in late September 2026. His lawyers have signaled they intend to pursue multiple grounds for dismissal, including claims that the prosecution violates his First Amendment rights and that he is being selectively and vindictively targeted based on his public opposition to Trump.
Sources
- CBS News — Comey’s motion to dismiss, First Amendment arguments, seashell post details, and allegations of Secret Service surveillance
- Carolina Journal — Second motion to dismiss filed July 29, 2026, accusing vindictive and selective prosecution
- Bloomberg Law — Confirmation of July 29 motion accusing DOJ of vindictive prosecution
- Fox News — Federal statutes under which Comey was charged (18 U.S.C. § 871 and § 875(c))
