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In his motion to dismiss charges that he threatened the president by posting a photo of sea shells, the former FBI director claims he had been surveilled by U.S. Secret Service.

FBI turned to convicted mafia killer to show ‘86-47’ could be a call for assassination.

It’s the second time the Trump administration has found a way to criminally charge the former FBI director, whom Trump has targeted for years.

James Comey filed a scorching motion to dismiss the indictment against him — accusing President Trump and the DOJ of ‘selective and vindictive prosecution.’

James Comey filed a scorching motion to dismiss the indictment against him — accusing President Trump and the DOJ of ‘selective and vindictive prosecution.’

James Comey argues indictment for ’86 47′ post violates First Amendment free speech, calling it protected political opposition to President Trump. | 830 WCCO

Former FBI Director James Comey has asked a federal judge to throw out criminal charges alleging he threatened President Donald Trump’s life. The motion challenges the basis of an indictment centred o…

Former FBI Director James Comey has asked a federal judge to throw out criminal charges alleging he threatened President Donald Trump’s life. The motion challenges the basis of an indictment centred on a photo of seashells arranged to read “86 47” on a North Carolina beach. James Comey wants the ‘86 47’ threat charges dismissed The post James Comey Seeks Dismissal of Donald Trump Threat Case Over ‘86 47’ Post appeared first on Mandatory .

Stick with me tonight. This is a long one, but the prosecution of Jim Comey—for the second time—poses a real risk to the First Amendment. Love him or hate him, it’s important for us to understand the argument the defense is making to dismiss the indictment. Subscribe An indictment because a man posted this on Instagram: It’s ridiculous. Today, Jim Comey’s lawyers argued “ridiculous” in 42-pages of legal prose, asking the Judge to dismiss the prosecution because it fails to allege “A true threat.” That’s an essential element of the charge prosecutors have brought against the former FBI Director. Normally, whether the prosecution can prove a “true threat” is a factual issue for the jury to decide. Juries decide issues of fact, while judges decide issues of law. Here, the defense argues that the government’s position is so deficient that, as a matter of law, the government’s indictment doesn’t allege a threat. That, they argue, means there is nothing for a jury to decide here, and the Judge can dismiss the indictment purely on legal grounds. As I’ve frequently mentioned, the table of contents in a brief is a great way to preview the argument in before getting into the details. That’s the case here. You know it’s going to be an interesting brief when, in addition to three and one-half pages of court cases the defense lists as support for its position, its section on “other authority” includes not only very old sedition and treason statutes, but an Amazon.com listing for “86 46 Impeach Biden” T-shirts. They even quote a Matt Gaetz tweet, from before the former Florida Representative’s bid to be Attorney General failed and he left Washington. Comey’s brief notes that “after several Republican leaders were ousted from leadership roles, a former member of the House of Representatives posted: ‘We’ve now 86’d: McCarthy McDaniel McConnell Better days are ahead for the Republican Party.’ Matt Gaetz (@mattgaetz), X (Feb. 28, 2024, at 17:27 ET).” The brief begins with an eloquent statement of the defense’s core reason the indictment should be dismissed: “This indictment targets protected speech at the heart of the First Amendment. Mr. Comey, an outspoken critic of President Trump, posted a photograph of seashells spelling out “86 47,” a well-known political slogan that expresses opposition to the President. In fact, thousands of items featuring this slogan have been sold on the internet and are available to this day, and the slogan was commonly displayed at protests around the country in the months preceding Mr. Comey’s post. But 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. That attempt to suppress core political speech contravenes both the statutes at issue and the First Amendment.” The two-count indictment was filed on April 28, 2026. Comey is charged with making a threat to Donald Trump almost a year before he was charged with it by posting the seashell picture “which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States.” That would violate 18 USC 871(a), which makes it a crime to threaten the president. He is also charged with violating 18 USC 875(c), which makes it a crime to transmit “any threat to injure the person of another,” in interstate commerce (an Instagram post would count, if it were actually a threat). The essence of both charges is making a threat, and Comey’s lawyers argue that not only would a jury refuse to find the seashell photo qualifies, but there are clear legal reasons the Judge should reject it too, and dismiss the indictment now instead of forcing Comey to go through additional legal proceedings. They say that the allegation that “86 47” amounts to a threat “is contradicted by every possible source of meaning: dictionaries, context, precedent, and common sense.” They argue that 86 means to reject or get rid of something and the phrase “has no violent connotation except in the most uncommon usages.” Even the most generous reading the court might give the indictment leads to the conclusion Comey’s post is “protected political hyperbole,” that if it is not a threat there is no case against Comey, and that “Courts have regularly dismissed indictments alleging statements far more ‘threatening’ than Mr. Comey’s social media post.” That’s the result they say should pertain here. Next comes a little jab—or perhaps it’s outreach anticipating they will win the motion to dismiss and the government will appeal—at the Supreme Court: “Allowing this prosecution to proceed would sharply depart from our Nation’s history and tradition.” The Court has infamously used the “history and tradition” test in recent terms to reach the result-oriented outcomes it has landed on in culture wars cases like Dobbs, the abortion case, and Bruen, the Second Amendment case. Here, they flip it back at the government, writing, “Under British law, citizens could be prosecuted and executed for speaking about the death of the King. But the Founders emphatically rejected that practice in the Constitution.” Rather, we are “free to criticize government officials in direct and even strident terms.” That principle is enshrined in the First Amendment. That analysis gives the defense a two-pronged path to victory. First, they argue there is no threat, so the government cannot establish one of the elements it must establish in order to convict: the threat. But even if Comey’s post “could be plausibly construed as an abstract call to violence,” which they say it cannot be, his lawyers argue that the indictment should still be dismissed because “the government’s attempt to prosecute him for that post is antithetical to fundamental First Amendment principles dating to the Founding.” Pick your poison; the government’s case fails either way. Much as the Supreme Court held that Trump could not be tried based on official acts because of presidential immunity, and the fact that it would be meaningless if he had to stand trial first and only on appeal have the legal privilege that protected him brought into play, Comey’s lawyers argue that he cannot be forced to proceed with the government violating his First Amendment rights by prosecuting him for protected speech. “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.” Then they make an exceedingly powerful argument in the context of this administration. If Comey can be prosecuted over seashells, the sky is the limit when it comes to this administration retaliating against its political opponents. Permitting this case to move forward, Comey’s lawyers write, “would invite future prosecutions by the Executive Branch against perceived political enemies for their opposition to the President.” The First Amendment “bars the government from using criminal prosecution to silence political opposition. The indictment must be dismissed.” It’s a strong, sensible, and logical argument. District Judge Louise Flanagan in the Eastern District of North Carolina must now decide whether to grant the motion. She is a graduate of Wake Forest and the University of Virginia School of Law. She was a magistrate judge in North Carolina when Comey became the supervisory assistant United States Attorney in charge of the Richmond U.S. Attorney’s Office in Virginia. By the time George W. Bush appointed her to the federal bench in 2003, Comey was serving as the U.S. Attorney in the Southern District of New York, and Bush appointed him that same year to serve as the Deputy Attorney General. They are of the same generation of lawyers in many ways, a generation where the bench respected Justice Department lawyers and those lawyers respected the judiciary. Judge Flanagan has given little indication of how she views the case. She indicated she would not accept any amicus (friend of the court) briefs, but that is not unusual for a district judge despite the recent proceedings in the slush fund case involving Trump in Florida. In fact, her early ruling would not prevent her from accepting amicus submissions down the road if a complicated legal issue arose down the road and she wanted to view outside advice, as Judge Williams in Florida did. It could easily be that Judge Flanagan views the case as being a straightforward one, well within her experience, and this is a motion she is readily prepared to rule on after it’s fully briefed and perhaps argued. Count One in the indictment alleges that Comey “knowingly and willfully ma[d]e a threat to take the life of, and to inflict bodily harm upon, the President.” Count Two says Comey’s post “contained a threat to kill the President.” From the seashells. That assessment is consistent with Donald Trump’s reaction to Comey’s Instagram post. Trump characterized it as “calling for assassination of the president” and said the Justice Department will “Handle It,” according to articles quoted by the defense. Then DHS Secretary Kristi Noem said the post “called for the assassination” of the President. Donald Trump Jr. posted on X that Mr. Comey had “call[ed] for [his] dad to be murdered.” But just saying it doesn’t make it so any more than Trump’s animus against people he perceives as enemies legitimizes other revenge prosecutions. In the Fourth Circuit, where this prosecution is pending, the defense argues that the courts only find true threats when a defendant’s statement “overtly expressed the defendant’s personal intention to cause harm.” Here, Comey was simply applauding an artistic form of political expression, and when the suggestion was made he was advocating for violence, he immediately took his post down, explained publicly he opposed all forms of violence, and submitted to a Secret Service interview voluntarily. Compare that to the comments made by the president, which the defense points to, when, “During the 2016 presidential campaign, President Trump remarked that if Hillary Clinton were elected, ‘Second Amendment people’ might be the only ones who could stop her.” Federal Rule of Criminal Procedure 12 authorizes judges to dismiss defective indictments. The defense points out that if an indictment doesn’t allege all the elements of a crime—here they say the “true threat” element is missing— it should be dismissed. “In that situation,” they write, “‘[t]here is no good reason to force the court to incur the expense and delay of a trial that would inevitably lead to the same outcome as its pretrial ruling.’” Most important of all here is the First Amendment. Comey’s lawyers note that “‘the Constitution forbids criminal punishment for protected advocacy,’ even if it is ‘inflammatory’ or ‘offensive.’” What’s good for the goose is good for the gander. They note: “As the President himself has argued when he was a defendant in a criminal case, an ‘indictment must be dismissed’ where it ‘seeks to criminalize core political speech and advocacy that lies at the heart of the First Amendment.’” This is the meat of their argument, and although the Judge need not get this far to dismiss the indictment—she could rule against the government because it’s defective without reaching the First Amendment claim—it’s important as a matter of principle. “Whatever one thinks of Mr. Comey’s message, the only question here is whether his post is protected speech. Because it is, the indictment must be dismissed.” If that doesn’t happen, Comey could in effect be forced to stand trial because he has publicly opposed Donald Trump and that “would give government a broad censorial power unprecedented . . . in our constitutional tradition.” The motion is replete with examples of other uses of the term “86” in a non-violent fashion. Yet this Justice Department chose to single out one of this president’s key opponents. And they waited a year to do so, hardly a signal that they took the “threat” seriously. Political opposition is not the same thing as a call to assassinate the president. And that’s the heart of the issue here. Trump’s Justice Department, as it has been wont to do, skips ahead to the conclusion the president wants it to reach, whether it is warranted as a matter of law and fact or not. And here it is not. Judge Flanagan now has the opportunity to reject that cavalier abuse of the criminal justice system to indulge the whims of one man, and refuse to let a ridiculous prosecution move forward. Reading legal pleadings together is one of the most important things we do at Civil Discourse. Understanding the arguments behind the headlines and beneath the hype exposes the mockery this administration makes of justice. Thank you for being here with me and supporting this work. It couldn’t happen without you and your paid subscriptions, and I’m deeply grateful to be part of a community that cares about democracy and justice. We’re in this together, Joyce Subscribe Share

Although it has “no precedent” in U.S. history, the Trump Justice Department’s criminal case against former FBI director James Comey would fit right into the English monarchy of the 1300s. That’s a running theme of Comey’s motion to dismiss his indictment as incompatible with the First Amendment of the Constitution. Comey’s lawyers point out that the indictment defies “dictionaries, context, precedent, and common sense,” but it is well-suited for a time when English subjects were “hung, drawn, and quartered for ‘imagining’ the death of the King.” Subscribe or upgrade now! ‘Treason by words’ Charged with threatening Donald Trump’s life, Comey has been facing a two-count indictment because he photographed a collection of seashells on a North Carolina beach arranged to spell out “86 47” in May of 2025. “Cool shell formation on my beach walk,” Comey mused in the caption of his Instagram. As Comey’s lawyers note, “86” is common restaurant slang for being out of a dish or throwing out a customer. The motion to dismiss cites three major dictionaries endorsing this definition: Merriam-Webster, American Heritage Dictionary of the English Language, and Oxford Dictionary. But Comey quickly deleted the post after Trump loyalists claimed that the numbers meant “to kill” the 47th president. Even if that “implausible” interpretation were true, Comey’s lawyers point out that this would not be a crime under U.S. law because the Founder of the U.S. Constitution rejected a legal regime which harshly punished imagined harm to the English crown. “Beginning in the fourteenth century, English law made it illegal to ‘compass or imagine the Death of our Lord the King.’ That prohibition was interpreted to include ‘treason by words,’ under which ‘[w]ords themselves were regarded as the overt act of treasons.’ The treason statute was enforced against citizens who made general statements opposing the King—for instance, that the kingdom would have been better off “if the king had never been born.” Likewise, a man was indicted for ‘predict[ing] that the king would ‘soon die, with a view to alienate the affections’ of the people.’ […’] Prosecutions for ‘compassing the king’s death’ thus became a ‘principal instrument’ to ‘suppress a wide range of political opposition.’ The Founders repudiated this British practice. Comey’s attorneys Joseph Zeszotarski, Patrick Fitzgerald, Ephraim McDowell and Rebekah Donaleski mine through U.S. history and precedent to make that case. “For example, after George Washington signed the controversial Jay Treaty in 1795, the toast at a Virginia dinner party was to ‘[a] speedy death to General Washington,’” they wrote in their memorandum. “When John Jay returned to the United States after negotiating the same treaty, he ‘reportedly ‘wryly observed that he could have found his way across the country by the light of his burning effigies.’” In 1835, “Vice President John C. Calhoun called President Andrew Jackson “a Caesar who ought to have a Brutus” just days before an assassin attempted to take Jackson’s life,” the memo continues. Share A ‘radical theory’ Even under the harshest light, Comey’s now-deleted Instagram post was far tamer. Comey didn’t arrange the shells to form “86 47.” He simply photographed it and wrote that he found the image “cool.” He then deleted the post when people claimed to take offense, writing in a follow up post: “I oppose violence of any kind.” Comey’s attorneys point out that “thousands of items” of merchandise advocating to “86” U.S. presidents are available for sale on the internet. In 2020, a Republican politician formed a political action committee called Eighty-Six Trump PAC, and Michigan Gov. Gretchen Whitmer wore an “86 45” pin during Trump’s first term. Right-wing influencer Jack Posobiec posted “86 46” during Joe Biden’s presidency. But Comey’s attorneys note that Supreme Court precedent allows explicitly violent political rhetoric about a president that falls short of a “true threat” or incitement. In the “foundational” decision of Watts v. United States in 1969, the Supreme Court cleared the conviction of a Vietnam War protester who said: “If they ever make me carry a rifle[,] the first man I want to get in my sights is L.B.J.” Close to two decades later in 1987, the Supreme Court ruled in the case of Rankin v. McPherson that a law enforcement official was unconstitutionally fired after remarking about an assassination attempt on President Ronald Reagan: “If they go for him again, I hope they get him.” Comey’s attorneys point out that there’s no comparison between the statement ruled lawful by the Supreme Court, Trump’s own history of violent rhetoric, and the post at issue in this case. “No authority holds that broadcasting to the world another person’s expression of a well-known political slogan with at most only an attenuated, obscure, and implausible suggestion of a call to violence can constitute a true threat,” they wrote. “This court should not be the first to endorse that radical theory.” Read their memorandum in full here, and check out my video breakdown below for Legal AF. All Rise News is reader-supported. To receive new posts and support this work, consider becoming a free or paid subscriber. Subscribe

Attorneys for James Comey asked a U.S. federal judge to dismiss the seashell threats case against him, which is set to go to trial in October, arguing that there was no actual threat against Donald Trump in the now year-old post.

Attorneys for James Comey asked a U.S. federal judge to dismiss the seashell threats case against him, which is set to go to trial in October, arguing that there was no actual threat against Donald Trump in the now year-old post.

Comey’s lawyers argue the seashell post is protected political speech, citing Supreme Court precedent requiring proof of subjective intent to threaten.

The defense makes strong contentions that the picture Comey posted was not a true threat and constituted protected political speech.

Attorneys for President Donald Trump’s longtime foe say the seashell-based social media post lacked “a true threat.”

Comey’s legal team will argue the seashells post is protected political speech under recent Supreme Court precedent requiring prosecutors to prove

The filing focused on the question of whether a photograph of seashells arranged to read “86 47” constituted a true threat under federal law.