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Former FBI Director James Comey Jr. is asking a federal judge to dismiss a federal criminal case accusing him of threatening President Donald Trump, arguing that his Instagram post at the center of the case doesn’t meet the legal definition of a “true threat.”
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“While the indictment fails on its face to allege a true threat, the background to this prosecution underscores the danger to free speech that it poses,” states a 42-page brief on the motion filed Monday.
The motion and supporting brief mark Comey’s first attempt to dismiss the two federal charges against him.
His attorneys argue the indictment targets speech protected by the First Amendment and “a well-known political slogan that expresses opposition to the President.”
Thousands of items featuring the slogan “86 47” have been sold on the internet, but the government is singling out Comey “to prosecute one of the President’s most prominent critics,” the filing states.
While the government claims that the “86 47” post is a “true threat,” it is contradicted, “by every possible source of meaning: dictionaries, context, precedent, and common sense,” the filing states. The filing asks U.S. District Judge Louise W. Flanagan to dismiss the indictment in the federal Eastern District of North Carolina.
The brief states that Comey’s Instagram post doesn’t constitute a serious expression of Comey’s intent to harm Trump and fails a required “objective reasonable observer test” that is part of the law.
Trump and others have wrongly claimed that the post is “a veiled call for other people to act violently,” the brief says. But even if that were a “viable interpretation” it still wouldn’t make the post a “true threat,” to “a reasonable observer who was aware of the relevant context,” the brief states.
The U.S. Supreme Court has recognized such statements to be “protected political hyperbole,” Comey’s lawyers state.
“Courts have regularly dismissed indictments alleging statements far more ‘threatening’ than Mr. Comey’s social media post, and the same result is warranted here,” the brief states.
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The North Carolina case stems from a May 2025 Instagram post in which Comey shared a photo of seashells arranged to read “86 47” that he said he found on a North Carolina beach.
Federal officials immediately began investigating the alleged threat against Trump, the 47th president, according to court documents.
The Merriam-Webster Dictionary defines 86 as ejecting, dismissing or removing a person from a place, or an item from a menu.
But Trump and federal prosecutors say the post amounted to a threat against the president. Comey has said he did not intend the post as a threat and removed it after learning others interpreted it that way.
A North Carolina grand jury indicted Comey on April 28 on two felony charges: threatening the president and transmitting a threat across state lines.
Each charge carries a maximum sentence of five years in prison. The case has drawn national attention as it tests the line between protected political speech and what federal law treats as a true threat.
All pretrial motions are due by Tuesday, according to a schedule set by Flanagan. Responses are due by Aug. 18 and then Sept. 1.
Comey’s arraignment, a hearing in which he would plead guilty or not guilty, is set for Sept. 30 at the federal courthouse in New Bern. If the case proceeds to a jury trial, it is scheduled to begin Oct. 21.
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This story was originally published July 27, 2026 at 12:34 PM.