Former FBI Director James Comey is fighting to dismiss federal charges that his Instagram photo of seashells spelling "8647" constituted a threat against President Trump, a case legal analysts say faces steep constitutional hurdles.
Comey's defense team filed a motion Monday in U.S. District Court for the Eastern District of North Carolina asking a federal judge to throw out the indictment on First Amendment grounds. The motion argues that "8647" is a widely used political slogan expressing opposition to the president, not a credible threat of violence. A grand jury in the same district indicted Comey in April on two counts: threatening the life of the president and transmitting a threat in interstate commerce.
The charges stem from a photo Comey posted on Instagram showing seashells arranged on a North Carolina beach to read "86 47." Prosecutors allege the numbers amount to a call to kill the president, with "86" interpreted as slang for "kill" and "47" referring to Trump, the 47th president. Comey's lawyers reject that reading outright.
The motion to dismiss pulls no punches. Comey's attorneys argue the government's interpretation of the post defies common sense, precedent, and the plain meaning of the phrase. As CNBC reported, the defense wrote:
"No reasonable observer would understand the phrase '86 47' to connote violence at all, let alone to threaten that Mr. Comey personally would commit violence against the President."
The filing goes further, arguing that "86" simply means "get rid of" or "eject" and carries no violent connotation "except in the most uncommon usages." Most dictionaries, the motion claims, do not even list "to kill" as a definition. Combined with "47," the defense says the phrase becomes "nothing more than a call to oppose President Trump."
Comey's lawyers also pointed to the phrase's wide commercial and political use. Thousands of items bearing the "86 47" slogan have been sold online, they wrote, and the slogan appeared at protests across the country in the months before Comey's post. Yet the government, the motion argues, "singles out Mr. Comey to prosecute one of the President's most prominent critics for publishing another person's statement of political opposition."
That framing, political speech, not criminal threat, sits at the center of the defense strategy. The motion calls the indictment an attempt "to suppress core political speech" that "contravenes both the statutes at issue and the First Amendment."
Comey's defense is not operating in a legal vacuum. National Review's Andrew C. McCarthy, a former federal prosecutor, wrote that the indictment is unlikely to survive constitutional review. McCarthy argued that the "8647" post "was not a true threat to assassinate the president, in light not only of common sense but also the Supreme Court's jurisprudence on actionable threats and protected speech under the First Amendment."
McCarthy went further, writing that "the simplest reason why the case should be thrown out is that the indictment fails to state a crime." Judge Louise Flanagan has set an October 21 trial date in the Eastern District of North Carolina, but McCarthy believes a trial is unlikely to occur.
Constitutional law expert Jonathan Turley offered a similar assessment. "If Comey is charged for the shell picture, it would face a monumental challenge under the First Amendment," Turley said, as Fox News reported. "In my view, the image itself is clearly protected speech."
Comey faces up to 10 years in prison if convicted on both counts. But the case has already hit turbulence on the prosecution's side: lead prosecutor Matthew Petracca stepped down from the case and was replaced by Assistant U.S. Attorney Timothy Severo. No public explanation was given for the change.
President Trump has left no ambiguity about how he reads the seashell photo. "It's a mob term for kill him. They say, 86 the son of a gun," Trump said, the New York Post reported. On another occasion, Trump said: "A child knows what that meant. If you're the FBI director and you don't know what that meant, that meant assassination."
Comey has offered a different account. After deleting the post, he said he did not realize some people associate the numbers with violence. "I oppose violence of any kind so I took the post down," Comey stated, AP News reported.
When Comey surrendered to federal authorities at the courthouse in Alexandria, Virginia, he struck a defiant tone. "I'm still innocent. I'm still not afraid, and I still believe in the independent federal judiciary. So let's go," he said.
Acting Attorney General Todd Blanche framed the prosecution differently. "Threatening the life of the President of the United States is a grave violation of our nation's laws," Blanche said when the charges were announced.
This is not the first time the Trump administration has brought charges against Comey. A federal grand jury in the Eastern District of Virginia indicted him last September on charges related to allegedly lying during testimony before the Senate Judiciary Committee on September 30, 2020. In that hearing, Comey reportedly denied authorizing another FBI employee to serve as an anonymous source for news reports about the bureau's probe of Hillary Clinton's emails during the 2016 presidential campaign.
That case never reached trial. A judge dismissed it in November after ruling that Lindsey Halligan, a former personal lawyer for Trump who had been serving as U.S. attorney for the Eastern District of Virginia, was unlawfully appointed to that position. The dismissal turned on Halligan's qualifications, not on the merits of the charges against Comey.
Comey has maintained he is being targeted by the Department of Justice because of Trump's longstanding hostility toward him. Trump fired Comey as FBI director in May 2017, and the two have been adversaries ever since. The broader political backdrop includes ongoing disputes over the FBI's conduct during the 2016 campaign, including questions about the bureau's use of FISA warrants to surveil figures connected to Trump's campaign.
The indictment in North Carolina, filed by a different grand jury than the one in Virginia, effectively gave prosecutors a second bite after the first case collapsed. Whether this attempt fares any better now rests with Judge Flanagan, and with the constitutional question at the heart of the motion: can the government criminalize a political slogan printed in seashells?
Several unknowns remain. The government has not publicly responded to Comey's motion to dismiss. The specific statutes cited in the indictment have not been identified by number in available reporting, and Comey's defense attorneys have not been named publicly. The judge presiding over the case has not signaled how she views the First Amendment arguments.
The prosecution also faces an uncomfortable fact pattern for its own theory. If "86 47" is a threat, then the thousands of people who bought merchandise bearing the same slogan, and the protesters who displayed it at rallies, were engaged in the same conduct. The government has not explained why Comey alone warrants criminal prosecution for a phrase that was, by any honest measure, in wide public circulation.
Comey is many things to many people, a polarizing figure who has drawn fire from the left and the right at different moments. But charging a former FBI director with threatening the president over a beach photo is a legal theory that asks a jury to see a death threat where most Americans would see sand and shells. If the First Amendment means anything, it means the government has to do better than that.