86 the "86 47" Prosecution of Jim Comey

Stick with me tonight. This is a long one, but the prosecution of Jim Comey—for the second time—poses a real risk to the First Amendment. Love him or hate him, it’s important for us to understand the argument the defense is making to dismiss the indictment.

An indictment because a man posted this on Instagram:

It’s ridiculous.

Today, Jim Comey’s lawyers argued “ridiculous” in 42-pages of legal prose, asking the Judge to dismiss the prosecution because it fails to allege “A true threat.” That’s an essential element of the charge prosecutors have brought against the former FBI Director.

Normally, whether the prosecution can prove a “true threat” is a factual issue for the jury to decide. Juries decide issues of fact, while judges decide issues of law. Here, the defense argues that the government’s position is so deficient that, as a matter of law, the government’s indictment doesn’t allege a threat. That, they argue, means there is nothing for a jury to decide here, and the Judge can dismiss the indictment purely on legal grounds.

As I’ve frequently mentioned, the table of contents in a brief is a great way to preview the argument in before getting into the details. That’s the case here.

You know it’s going to be an interesting brief when, in addition to three and one-half pages of court cases the defense lists as support for its position, its section on “other authority” includes not only very old sedition and treason statutes, but an Amazon.com listing for “86 46 Impeach Biden” T-shirts.

They even quote a Matt Gaetz tweet, from before the former Florida Representative’s bid to be Attorney General failed and he left Washington. Comey’s brief notes that “after several Republican leaders were ousted from leadership roles, a former member of the House of Representatives posted: ‘We’ve now 86’d: McCarthy McDaniel McConnell Better days are ahead for the Republican Party.’ Matt Gaetz (@mattgaetz), X (Feb. 28, 2024, at 17:27 ET).”

The brief begins with an eloquent statement of the defense’s core reason the indictment should be dismissed:

“This indictment targets protected speech at the heart of the First Amendment. Mr. Comey, an outspoken critic of President Trump, posted a photograph of seashells spelling out “86 47,” a well-known political slogan that expresses opposition to the President. In fact, thousands of items featuring this slogan have been sold on the internet and are available to this day, and the slogan was commonly displayed at protests around the country in the months preceding Mr. Comey’s post. But the government now singles out Mr. Comey to prosecute one of the President’s most prominent critics for publishing another person’s statement of political opposition. That attempt to suppress core political speech contravenes both the statutes at issue and the First Amendment.”

The two-count indictment was filed on April 28, 2026. Comey is charged with making a threat to Donald Trump almost a year before he was charged with it by posting the seashell picture “which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States.” That would violate 18 USC 871(a), which makes it a crime to threaten the president. He is also charged with violating 18 USC 875(c), which makes it a crime to transmit “any threat to injure the person of another,” in interstate commerce (an Instagram post would count, if it were actually a threat). The essence of both charges is making a threat, and Comey’s lawyers argue that not only would a jury refuse to find the seashell photo qualifies, but there are clear legal reasons the Judge should reject it too, and dismiss the indictment now instead of forcing Comey to go through additional legal proceedings.

They say that the allegation that “86 47” amounts to a threat “is contradicted by every possible source of meaning: dictionaries, context, precedent, and common sense.” They argue that 86 means to reject or get rid of something and the phrase “has no violent connotation except in the most uncommon usages.” Even the most generous reading the court might give the indictment leads to the conclusion Comey’s post is “protected political hyperbole,” that if it is not a threat there is no case against Comey, and that “Courts have regularly dismissed indictments alleging statements far more ‘threatening’ than Mr. Comey’s social media post.” That’s the result they say should pertain here.

Next comes a little jab—or perhaps it’s outreach anticipating they will win the motion to dismiss and the government will appeal—at the Supreme Court: “Allowing this prosecution to proceed would sharply depart from our Nation’s history and tradition.” The Court has infamously used the “history and tradition” test in recent terms to reach the result-oriented outcomes it has landed on in culture wars cases like Dobbs, the abortion case, and Bruen, the Second Amendment case. Here, they flip it back at the government, writing, “Under British law, citizens could be prosecuted and executed for speaking about the death of the King. But the Founders emphatically rejected that practice in the Constitution.” Rather, we are “free to criticize government officials in direct and even strident terms.” That principle is enshrined in the First Amendment.

That analysis gives the defense a two-pronged path to victory. First, they argue there is no threat, so the government cannot establish one of the elements it must establish in order to convict: the threat. But even if Comey’s post “could be plausibly construed as an abstract call to violence,” which they say it cannot be, his lawyers argue that the indictment should still be dismissed because “the government’s attempt to prosecute him for that post is antithetical to fundamental First Amendment principles dating to the Founding.” Pick your poison; the government’s case fails either way.

Much as the Supreme Court held that Trump could not be tried based on official acts because of presidential immunity, and the fact that it would be meaningless if he had to stand trial first and only on appeal have the legal privilege that protected him brought into play, Comey’s lawyers argue that he cannot be forced to proceed with the government violating his First Amendment rights by prosecuting him for protected speech. “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.”

Then they make an exceedingly powerful argument in the context of this administration. If Comey can be prosecuted over seashells, the sky is the limit when it comes to this administration retaliating against its political opponents. Permitting this case to move forward, Comey’s lawyers write, “would invite future prosecutions by the Executive Branch against perceived political enemies for their opposition to the President.” The First Amendment “bars the government from using criminal prosecution to silence political opposition. The indictment must be dismissed.”

It’s a strong, sensible, and logical argument. District Judge Louise Flanagan in the Eastern District of North Carolina must now decide whether to grant the motion. She is a graduate of Wake Forest and the University of Virginia School of Law. She was a magistrate judge in North Carolina when Comey became the supervisory assistant United States Attorney in charge of the Richmond U.S. Attorney’s Office in Virginia. By the time George W. Bush appointed her to the federal bench in 2003, Comey was serving as the U.S. Attorney in the Southern District of New York, and Bush appointed him that same year to serve as the Deputy Attorney General.

They are of the same generation of lawyers in many ways, a generation where the bench respected Justice Department lawyers and those lawyers respected the judiciary. Judge Flanagan has given little indication of how she views the case. She indicated she would not accept any amicus (friend of the court) briefs, but that is not unusual for a district judge despite the recent proceedings in the slush fund case involving Trump in Florida. In fact, her early ruling would not prevent her from accepting amicus submissions down the road if a complicated legal issue arose down the road and she wanted to view outside advice, as Judge Williams in Florida did. It could easily be that Judge Flanagan views the case as being a straightforward one, well within her experience, and this is a motion she is readily prepared to rule on after it’s fully briefed and perhaps argued.

Count One in the indictment alleges that Comey “knowingly and willfully ma[d]e a threat to take the life of, and to inflict bodily harm upon, the President.” Count Two says Comey’s post “contained a threat to kill the President.” From the seashells.

That assessment is consistent with Donald Trump’s reaction to Comey’s Instagram post. Trump characterized it as “calling for assassination of the president” and said the Justice Department will “Handle It,” according to articles quoted by the defense. Then DHS Secretary Kristi Noem said the post “called for the assassination” of the President. Donald Trump Jr. posted on X that Mr. Comey had “call[ed] for [his] dad to be murdered.” But just saying it doesn’t make it so any more than Trump’s animus against people he perceives as enemies legitimizes other revenge prosecutions.

In the Fourth Circuit, where this prosecution is pending, the defense argues that the courts only find true threats when a defendant’s statement “overtly expressed the defendant’s personal intention to cause harm.” Here, Comey was simply applauding an artistic form of political expression, and when the suggestion was made he was advocating for violence, he immediately took his post down, explained publicly he opposed all forms of violence, and submitted to a Secret Service interview voluntarily. Compare that to the comments made by the president, which the defense points to, when, “During the 2016 presidential campaign, President Trump remarked that if Hillary Clinton were elected, ‘Second Amendment people’ might be the only ones who could stop her.”

Federal Rule of Criminal Procedure 12 authorizes judges to dismiss defective indictments. The defense points out that if an indictment doesn’t allege all the elements of a crime—here they say the “true threat” element is missing— it should be dismissed. “In that situation,” they write, “‘[t]here is no good reason to force the court to incur the expense and delay of a trial that would inevitably lead to the same outcome as its pretrial ruling.’”

Most important of all here is the First Amendment. Comey’s lawyers note that “‘the Constitution forbids criminal punishment for protected advocacy,’ even if it is ‘inflammatory’ or ‘offensive.’” What’s good for the goose is good for the gander. They note: “As the President himself has argued when he was a defendant in a criminal case, an ‘indictment must be dismissed’ where it ‘seeks to criminalize core political speech and advocacy that lies at the heart of the First Amendment.’”

This is the meat of their argument, and although the Judge need not get this far to dismiss the indictment—she could rule against the government because it’s defective without reaching the First Amendment claim—it’s important as a matter of principle. “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.” If that doesn’t happen, Comey could in effect be forced to stand trial because he has publicly opposed Donald Trump and that “would give government a broad censorial power unprecedented . . . in our constitutional tradition.”

The motion is replete with examples of other uses of the term “86” in a non-violent fashion. Yet this Justice Department chose to single out one of this president’s key opponents. And they waited a year to do so, hardly a signal that they took the “threat” seriously. Political opposition is not the same thing as a call to assassinate the president. And that’s the heart of the issue here. Trump’s Justice Department, as it has been wont to do, skips ahead to the conclusion the president wants it to reach, whether it is warranted as a matter of law and fact or not. And here it is not. Judge Flanagan now has the opportunity to reject that cavalier abuse of the criminal justice system to indulge the whims of one man, and refuse to let a ridiculous prosecution move forward.

Reading legal pleadings together is one of the most important things we do at Civil Discourse. Understanding the arguments behind the headlines and beneath the hype exposes the mockery this administration makes of justice. Thank you for being here with me and supporting this work. It couldn’t happen without you and your paid subscriptions, and I’m deeply grateful to be part of a community that cares about democracy and justice.

We’re in this together,

Joyce