Lawyers for Comey wrote in their motion to dismiss the case that the indictment returned by a federal grand jury earlier this year “targets and chills” political speech. The First Amendment, they wrote, prohibits the government from using criminal prosecution to punish a political opponent.
“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,” Comey’s defense team wrote. “And it would invite future prosecutions by the Executive Branch against perceived political enemies for their opposition to the President.”
They argued that the indictment against Comey should be dismissed because it does not allege he made a true threat against Mr. Trump.
Comey faces two charges of threatening to kill the president, which stem from a photo he briefly posted to his Instagram account last year that showed seashells arranged in the sand to form the numbers “86 47.”
Prosecutors claim that a “reasonable recipient” would interpret the depiction of the shells “as a serious expression of an intent to do harm to President Trump.”
Comey deleted the image soon after he shared it and said at the time that he believed the shell formation was communicating a political message. He said in May 2025 that he didn’t realize that the numbers may be associated with violence and took the post down because “I oppose violence of any kind.”
The former FBI director is set to be arraigned in late September and has proclaimed he is innocent of the charges.
Comey is expected to file several motions seeking to have the charges against him dismissed on a variety of grounds, including that the prosecution against him is selective and vindictive.
In their first filing raising First Amendment issues with the indictment, his lawyers said that the phrase “86” means “to get rid of” or “eject,” and “has no violent connotation except in the most uncommon usages.” The defense team cited several other instances where the phrase “86” has been used, including by former Republican Rep. Matt Gaetz of Florida in response to the removal of several GOP leaders from their roles.
But even if Comey’s post is read to imply violence, his lawyers said, it would be recognized by a reasonable observer as political hyperbole, which is protected by the First Amendment.
“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,” they wrote.
Comey’s lawyers warned of the consequences of letting the criminal case against him move forward.
Allowing the indictment to stand would “permit the government to chill political opposition merely by filing unfounded charges and imposing the burdens of a trial on someone who engaged in protected speech,” they said.
Comey is a frequent target of the president’s due to his role in the investigation into Russian meddling in the 2016 presidential election, which the FBI launched in Mr. Trump’s first term.
He was indicted last year in a separate case that involved testimony Comey gave to Congress in September 2020. But those charges were dismissed when a judge found that the prosecutor who pursued and secured the indictment had been improperly appointed interim U.S. attorney.
The Justice Department has appealed that decision.
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