Washington — Former FBI Director James Comey asked a federal judge Monday to dismiss an indictment accusing him of threatening President Trump, contending the case criminalizes constitutionally protected political speech and that the disputed phrase, “86 47,” is not a call for violence.
In a motion to dismiss, Comey’s attorneys argued that the federal grand jury indictment brought earlier this year “targets and chills” political expression. They said the First Amendment bars the government from using criminal charges as a weapon against a political adversary.
“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,” his legal team wrote. They added that allowing the case to proceed could open the door to future prosecutions by the executive branch aimed at people viewed as political opponents because they criticized the president.
Comey’s lawyers said the indictment should be thrown out because it fails to claim that he issued what the law defines as a true threat against Mr. Trump.
The former FBI director is charged with two counts of threatening to kill the president. The charges arise from a photo he briefly shared on Instagram last year showing seashells arranged on a beach to spell out the numbers “86 47.”
Federal prosecutors allege that a “reasonable recipient” would understand the seashell display “as a serious expression of an intent to do harm to President Trump.”
Comey removed the post shortly after publishing it and said at the time that he understood the shell arrangement to be a political message. In May 2025, he said he had not realized the numbers could be linked to violence and deleted the image because, as he put it, “I oppose violence of any kind.”
Comey, who has maintained that he is innocent, is scheduled to be arraigned in late September.
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.
