Former FBI Director James Comey urged a federal judge to dismiss a criminal indictment that accuses him of threatening to kill President Donald Trump.
He is arguing that the seashell-based federal case runs contrary to ‘dictionaries, context, precedent, and common sense.’
Comey’s lawyers say that the infamous Instagram post at the center of the controversy, which featured seashells arranged in the sand in the shape of numbers ’86 47′ – failed to constitute a ‘true threat’ against Trump that would be needed to satisfy a criminal indictment.
The ’86 47′ term is a ‘well-known political slogan that expresses opposition to the president,’ they said, arguing that it therefore falls under the category of political speech that is expressly protected under the First Amendment.
‘No reasonable observer’ would understand the post to ‘connote violence at all,’ his lawyers said, ‘let alone threaten that Mr. Comey personally would commit violence against the President,’ which Trump and his allies have suggested.
Comey’s post was ‘mere political hyperbole, not a true threat,’ said the filing, submitted to the Eastern District of North Carolina. He faces federal trial in October.
In April, Trump slammed ‘dirty cop’ Comey for posting the number 86, which he said is a ‘mob term for “kill him.”‘
‘The mob uses that term to say, when they kill somebody, they say “86 that son of a gun” … They use another term, but that’s a mob term for killing,’ Trump explained.
Former FBI Director James Comey wants his case thrown out before it goes to trial
In April, Trump slammed ‘dirty cop’ Comey for posting the number 86. He is the 47th President
The number 86 is slang for removing or getting rid of something, though it can also mean to kill. Trump is the 47th President
Pressed on whether the post made him fear for his life, Trump said, ‘Probably, I don’t know.’
The phrase 86 generally refers to removing or getting rid of. And 47 refers to Trump being the 47th President. Past postings of the numerals by other political figures are now being resurfaced in light of the Comey case.
The motion to dismiss comes more than a year after Comey posted a photo of the shell arrangement on his Instagram page.
He said he had encountered it while on a walk with his wife in North Carolina, and captioned the post: ‘Cool shell formation on my beach walk.’ Within hours, the post sparked intense backlash, and Comey removed it.
Comey has denied any wrongdoing in posting the photo last year, noting at the time that his wife associated it with her time as a restaurant server, where the term ’86’ means taking something off the menu.
The former FBI director has maintained that the accusations and charges are the result of political animus by the commander-in-chief and his ‘bottomless desire’ to exact retribution against his public critics.
His lawyers echoed as much in their motion to dismiss. 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,’ they said.
‘That attempt to suppress core political speech contravenes both the statutes at issue and the First Amendment.’
The filing, submitted to the Eastern District of North Carolina, marks the second time in as many years that Comey’s lawyers have sought to dismiss federal criminal charges that were brought against him during Trump’s second presidential term.
Comey was indicted last September in the Eastern District of Virginia on charges of lying to Congress and obstruction stemming from his testimony to lawmakers five years earlier, in 2020.
The charges were dismissed by a federal judge in November, who ruled that Lindsey Halligan, Trump’s former personal lawyer who brought the criminal case, was unlawfully appointed to the role.
Lindsey Halligan, an attorney for Trump, looks on during an executive order signing in the Oval Office
Former DHS Secretary Kristi Noem and former Attorney General Pam Bondi stand by Trump as he speaks in the Oval Office
Comey speaks to the press after testifying before the House Judiciary and House Oversight and Government Reform Committees joint investigation in 2020
The court fight comes as Comey and Trump have sparred very publicly for years since Trump’s first presidential term.
Trump fired Comey in 2017, years before the end of his 10-year tenure as FBI director.
Comey, in the years that followed, emerged as one of Trump’s most prominent and unsparing public critics – blasting him in his memoir and in congressional hearings as both unethical and ‘untethered to truth.’
If the seashell-based criminal case moves to trial, and Comey is convicted, he could face up to a decade in prison and up to $250,000 in criminal fines.
It is unclear if, or when, the federal judge in North Carolina might move on Comey’s motion to dismiss. A federal judge in Washington, DC, recently ruled that demonstrators whose flag had the same ’86 47′ message did not have to take it down, writing that ‘no reasonable observer could have viewed’ the numerical phrase as ‘a threat to the president’s life or physical safety.’
Martin Lederman, a Georgetown Law professor and former Deputy Assistant Attorney General at the Justice Department’s Office of Legal Counsel, echoed this skepticism on Monday.
‘This should be one of the most easily and swiftly granted motions ever,’ Lederman said on social media, sharing a link to the full motion to dismiss. ‘The indictment is an embarrassment.’
