Former FBI Director Comey says Trump threat case could chill free speech, seeks dismissal

Virginia Bridges, The News & Observer (Raleigh) on Jul 27, 2026

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Former FBI Director James Comey Jr. is asking a federal judge to dismiss the criminal case accusing him of threatening President Donald Trump, arguing that the prosecution endangers free speech by treating a political message as a criminal threat.

“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 formal attempt to have a judge dismiss the two federal charges against him.

The 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. 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.

Comey’s attorneys argue in the documents filed Monday that the Instagram post was neither intended nor could it reasonably be interpreted as a true threat against the president. Instead, they argue, the indictment targets a frequent Trump critic and threatens the bedrock principle that Americans are free to criticize government officials.

“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,” the brief states. “And it would invite future prosecutions by the Executive Branch against perceived political enemies for their opposition to the President.”

Comey called local police chief, agreed to be interviewed by Secret Service

When Comey encountered the seashells spelling out “86 47,” he didn’t know who created it, but he thought it was a clever way of expressing political opposition to Trump, and he posted it to his Instagram account with about 200,000 followers, the brief states.

Many online retailers have sold items with the term “86 47” referring to Trump the 47th president, as well as “86 46” referring to former President Joe Biden, the brief states. After the post, Trump and some of his supporters immediately attacked him, the brief states. Trump said the post was “calling for assassination of the president,” the brief states. Comey deleted the post within hours. He then shared a second post on Instagram that said he didn’t realize that some people associated “86 47” with violence. “It never occurred to me but I oppose violence of any kind so I took it down,” Comey wrote.

He also contacted a local police chief about the controversy and agreed to be interviewed by the Secret Service that night or the next day, the brief states.

About the Comey brief

About a year after Comey deleted the post, a North Carolina grand jury charged him with knowingly making a threat to kill or harm the president. The brief filed Monday, argues that the post wasn’t a threat but “political hyperbole,” which the U.S. Supreme Court has recognized as protected speech.

“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.

Even if someone incorrectly interpreted the post as a threat, there is “no serious expression” that Comey intended to commit violence against the president, which is required for a “true threat” to exist, the brief states.

What is next in the James Comey case?

Carl Tobias, a law professor at the University of Richmond, said the brief makes strong points about how the Comey indictment could chill free speech if it moves forward. It also highlights the implausibility of Comey engaging or encouraging violence, which he has never done, Tobias said.

Next steps include prosecutors responding to the brief, and the judge deciding on Comey’s motion based on the written arguments or possibly calling for a hearing, Tobias said.

The government’s response could include the evidence that officials have said they gathered in a year-long investigation, or it could possibly be sealed for just the judge to review. It would be unusual for District Court Judge Louise Flanagan to dismiss the charges at this stage, but it has happened, Tobias said. Under a schedule set by Flanagan, all pre-trial motions are due by Tuesday. 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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