Comey Tries to 86 the Seashells Case: Part I

In May 2025, former FBI Director James Comey, while vacationing at a beach in North Carolina, posted a photograph to his Instagram page.  The image depicted seashells arranged to spell out “86 47.” He added a brief caption to the post: “Cool shell formation on my beach walk.”

Nearly a year later, following an 11-month investigation involving the Secret Service, the FBI, and the Justice Department, a grand jury in the Eastern District of North Carolina indicted Comey on two felony charges for his seashell post. The indictment alleges that the former FBI director’s Instagram post was a threat against the life of the 47th president of the United States, Donald J. Trump.

It is the Justice Department’s second attempt to prosecute Comey, and the merits of the case are, in some respects, even more frivolous than the last. Comey’s first indictment, in September of 2025, accused him of misleading Congress and obstructing a congressional investigation. That prosecution was subsequently dismissed last year after a federal district judge found that Lindsey Halligan, then the U.S. Attorney for the Eastern District of Virginia, had not been lawfully appointed.

This time around, if the former FBI director’s latest indictment is dismissed pre-trial, it will have something to do with one of four motions his defense team filed that are currently pending before Judge Louise Flanagan. These motions include First Amendment challenges, vindictive or selective prosecution claims, a request for a Franks hearing, and a bid for the disclosure of grand jury materials. Together, the motions and their supporting materials sketch the portrait of a prosecution driven by personal animus, marked by investigative irregularities, and supported by questionable legal theories.

To avoid an especially lengthy article, we have published our analysis of these motions in two separate pieces. The first addresses Comey’s two motions to dismiss: the First Amendment challenge and the selective or vindictive prosecution claim. A companion piece examines the remaining two motions, which focus on suppression of evidence and access to grand jury materials.

What follows takes each motion to dismiss in turn, weighing not only their respective strengths and weaknesses, but also what they reveal about the government’s investigation and theory of the case as a whole.

Motion to Dismiss on First Amendment Grounds:

Lack of a “True Threat”

Comey has moved to dismiss his indictment for lack of a “true threat.” Put differently, he claims his Instagram post of seashells spelled out to read “86 47” constituted First Amendment-protected speech. A “true threat,” by contrast, is the opposite: it’s a “serious expression,” the Supreme Court has explained, “conveying that a speaker means to commit an act of unlawful violence.” True threats are among the few categories of speech that the Supreme Court has held are not protected by the First Amendment.

The “true” in “true threat” is meant to exclude hyperbole, jokes, and other statements that listeners don’t consider to be threatening. (An example of what is not a true threat, from a recent Supreme Court decision: “I am going to kill you for showing up late.”) All of that is protected by the First Amendment. The Court has held that, to constitute a true threat, the government must prove (1) that a reasonable person would understand the statement as a threat, and (2) that the speaker was actually aware that others might understand it that way.

The term “true threat” originated in the Supreme Court’s decision in Watts v. United States (1969). In that case, an 18-year-old participating in a small discussion group about police brutality following a public rally on the grounds of the Washington Monument said:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J. . . . They are not going to make me kill my black brothers.

Both Watts and the crowd laughed afterwards. But an Army Counter Intelligence Corps investigator who was present took the remark seriously. Like Comey, Watts was indicted under 18 U.S.C. § 871(a), which criminalizes “any threat to take the life of, to kidnap, or to inflict bodily harm upon the President” or those in the line of succession. After his lawyer moved unsuccessfully for a judgment of acquittal at the close of the prosecution’s case, the jury convicted Watts.

The Supreme Court ruled that the district court had erred. Watts was merely expressing, albeit in a “crude” and “offensive” way, his political opposition to President Johnson. Taken in context—which included the listeners’ reaction—“we do not see how it could be interpreted otherwise.”

Comey’s argument, in essence, is that no one could take the post seriously:

No reasonable observer who was aware of the relevant context would read the phrase “86 47” to connote violence against the President. But even if “86 47” could implausibly be read to suggest violence, a reasonable observer would still understand Mr. Comey’s post as mere political hyperbole, not a true threat.

Citing dictionaries, he argues that “86” is a slang term that means “get rid of” or “throw out,” although he concedes that “on isolated occasions” it has been used to mean “to kill.” He lists numerous benign uses of “86” in political discourse, including other examples of “86 47” (preceded by “86 45” and “86 46”).

But the government has a compelling response: providing the “relevant context” is what a trial is for. Only if there’s no possible context in which the facts presented in the indictment could constitute a “true threat,” the prosecution says, can such a motion to dismiss be granted. Quoting a decision of the U.S. Court of Appeals for the Fourth Circuit, whose case law is binding on this district court, the government argues that a court “may not dismiss an indictment . . . on a determination of facts that should have been developed at trial.” 

Here, the government notes, the meaning of that context is disputed. The government cites several aspects that, it argues, a jury could take into account, while noting that others could emerge at trial. First, there had been several recent attempts on the president’s life. Second, just five days after his post, Comey published a novel portraying a controversial media figure known for targeting political opponents with ambiguous remarks that he knows some listeners will (and in fact do) take as an instruction to inflict harm. Third, two residents of the town where Comey was staying allegedly notified the police upon seeing the post, and a Comey relative texted him to condemn the post as a “call for violence.”

All that seems like thin gruel—as does the fact that sometimes “86” has indeed been used to contemplate murder. But the government insists the judge may not dip a spoon into the porridge:  “The jury must decide whether that and any other pertinent context is enough for a conviction.”

The government cites a Fifth Circuit case decided earlier this year, United States v. Burger, in which the court of appeals reversed the district court’s dismissal of an indictment of an 18-year-old who transmitted threats while playing on Roblox, the online gaming platform. The district judge concluded that Burger had sent the threats simply while role-playing as a character. But the court of appeals reversed: “the district court’s findings resolved a disputed factual question: whether the context of the [game] would lead a reasonable player to believe that Burger was role-playing rather than expressing a sincere intent to commit violence.”

This does not mean that Comey is completely at the jury’s mercy. He can—as Watts did—move for a judgment of acquittal at the close of the government’s case. He would argue that no rational juror could find, on the basis of the evidence presented at trial, that his post constituted a true threat. 

Besides, the Fifth Circuit’s Burger decision is not binding in the Eastern District of North Carolina, where Comey’s case is being heard. If convicted, he would appeal to the Fourth Circuit, where precedent requires the court to conduct its own review of whether a reasonable person, given the context, would understand the statement as a threat—without any deference to the jury’s verdict. (There is a circuit split on whether this is the appropriate standard.)

Thus, if the government’s case is as weak as it appears to be based on this briefing, Comey will have subsequent chances to defeat it. But not until after he has sat through that case at trial.

Comey maintains that this is not enough. Pointing to the unique features of his case, he argues that courts have a “special responsibility” to dismiss indictments “that suppress speech by their mere pendency.” He asserts that “[a] contrary approach 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.” There is some force to this argument. And if there is any case in which courts may be tempted to deviate from the general reluctance to dismiss criminal cases pretrial, it is here, where the combination of investigative irregularities and apparently thin evidence suggests that the government’s case is especially suspect. Furthermore, Comey does cite a few true-threat cases where district courts have granted motions to dismiss. (There appears to be no Fourth Circuit case law adjudicating a motion to dismiss in a true-threat case.)

But a judge concerned about those issues might instead look to the doctrines of selective and vindictive prosecution, to which we now turn.

Motion to Dismiss for Vindictive or Selective Prosecution

Comey’s second motion to dismiss alleges that his indictment was selective and vindictive. It’s not his first time litigating this type of claim: Last fall, he lodged a similar motion in his prosecution for allegedly lying to Congress. It was never adjudicated because the indictment was dismissed on other grounds.

Vindictive and selective prosecution, while usually paired for the purposes of motions to dismiss, are actually separate concepts rooted in separate constitutional provisions: Vindictiveness claims invoke the Due Process Clause, and selectiveness claims rely on the Equal Protection Clause. The standard for prevailing on either of these claims is stringent—thanks in part to a presumption of regularity in prosecutorial decisionmaking. However, as the defense points out multiple times in its filings, little about this case is regular.

Vindictive Prosecution

Winning on a vindictiveness claim requires a defendant to prove that the government brought charges in retaliation for his or her exercise of a legal right. If the defendant makes a showing that there is a “realistic likelihood of vindictiveness,” the burden shifts to the government to prove that its decision to bring charges was reasonable. (The burden-shifting occurs at the trial phase, but generally not pretrial.) Ultimately, a court will dismiss on the grounds of vindictive prosecution only if it finds that a prosecutor acted with genuine animus toward a defendant and, crucially, that the defendant would not have been prosecuted “but for” that animus.

Comey’s motion asserts that his prosecution was motivated by President Trump’s resentment of him for his role in investigating the 2016 Trump campaign’s connections to Russia—as well as his public criticisms of the president after his firing as FBI director. (As Comey recounts, Trump has at various junctures called him “a corrupt piece of garbage,” “a disgraced liar & leaker,” a “weasel,” “a weak and untruthful slime ball” and “very sick or very dumb.”) This personal animus, Comey argues, led the president to pursue his prosecution—last time, and when that failed, the motion says, this time, too.

The government responds that Comey fails to prove vindictive prosecution because he has not shown that the charges came as retaliation specifically against his exercise of a legal right. Because the former FBI director’s conduct occurred in his official capacity, argues the government, it doesn’t qualify as “exercise of a legal right.”

Comey, in turn, replies that prosecutions motivated by animus are verboten “regardless of whether that animus is connected to the defendant’s exercise of his constitutional rights.” In other words, it is enough that the government’s charges were allegedly brought because the president didn’t like him: Either way, using prosecutorial authority as “an instrument of oppression” violates the Due Process Clause.

Even if proving vindictive prosecution requires a showing that the defendant was retaliated against for exercising a right, Comey argues he has made that showing by demonstrating that he was prosecuted for his First Amendment-protected speech as a private citizen after leaving the FBI in 2017. He lays out how frequently he has criticized Trump and how often Trump has criticized him. But it is difficult for him to demonstrate that Trump was retaliating against him specifically due to his private speech, rather than as a continuation of a long-simmering feud that began when Comey was in government. Comey’s strongest evidence comes from Trump’s former chief of staff John Kelly, who told the New York Times that Trump wanted the IRS to investigate Comey as part of (as summarized by the Times) “a broader pattern of him trying to use the Justice Department and his authority as president against people who had been critical of him.”

Of course, while President Trump may have said all these things, President Trump didn’t bring the charges—U.S. Attorney for the Eastern District of North Carolina W. Ellis Boyle did. This is perhaps Comey’s highest hurdle to clear, because vindictive prosecution claims rely on proving the prosecutor acted with animus.

To surmount this obstacle, the defense invokes what’s known as the stalking horse theory: that where a third party “in some way prevail[s] upon the prosecutor in making the decision to seek an indictment,” the “ill will” of that third party may be “imputed to federal prosecutors.” The third party here is, obviously, the president—who “translated that malice into action by prodding the DOJ to prosecute” Comey. (The government argues that the stalking horse theory isn’t available because the Fourth Circuit has never accepted it; the defense responds that it has not rejected the concept either.)

Comey’s discussion of how precisely the prodding of prosecutors took place turns on Trump’s Truth Social post addressed to then-Attorney General Pam Bondi, which declared that Comey was generally “guilty as hell.” Without specifying a crime, Trump wrote: “We can’t delay any longer, it’s killing our reputation and credibility… JUSTICE MUST BE SERVED, NOW!!!” The motion interprets this post as a direction to the attorney general to prosecute Comey—which, ultimately, she did via Halligan.

But this old tale, the briefing explains, now has new chapters. Eventually, Bondi was fired—reportedly in part for her failure to pursue the president’s political and personal enemies with sufficient vigor. Trump reportedly told Todd Blanche, as acting attorney general, that he was “auditioning” for the role (something Blanche has denied). As part of this performance, the defense argues, “Mr. Blanche sought to do what Ms. Bondi could not: successfully prosecute Mr. Comey.”

And so, despite an 11- month  investigation that had apparently yielded nothing worth presenting to a grand jury, the seashells resurfaced. Eventually, according to MS NOW, Blanche’s aides instructed U.S. Attorney W. Ellis Boyle to seek a grand jury indictment. Which he did.

Comey’s recitation of this history serves two purposes. First, he argues that the indictment wouldn’t have been brought at all absent the president’s animus—which satisfies the “but for” prong of proving a vindictive prosecution. Second, he claims that these events show how the president prevailed upon his subordinates to secure the indictment such that his animus can be imputed to them.

Comey also bolsters his imputation argument by citing in a footnote Blanche’s recent assertion that the attorney general isn’t independent from the president after all. And his briefs nod to the president’s insistence that the executive is unitary, even as the government tries to argue here that he and his Justice Department contain multitudes.

The question is whether there is a close enough connection between the president’s animus and the prosecutor’s charging decision. The government says it’s not: Relying on an affidavit from Boyle, it says that the U.S. attorney himself looked “into the matter upon assuming his position” and just so happened to decide to seek an indictment right around the time Bondi was out and Blanche was in—“without any influence from the Attorney General, much less the President, whatsoever.”

Comey answers that the causal connection is plenty close, and that the affidavit actually proves that: Because the investigation began months before Boyle took his post, he couldn’t have decided to “pursue the investigation.” Moreover, while he says he didn’t communicate with either of the relevant attorneys general until the day before the indictment, he says nothing about any communication he may have had with their aides. If Judge Flanagan accepts Comey’s argument, she may find that he has established a presumption of vindictiveness, which could lead her to grant discovery.

There’s another possible snag in the vindictiveness claim, at least for now: The government argues that at the pretrial stage, the defense alone bears the burden of proof and must prove vindictiveness directly. Burden-shifting—that is, once the defendant proves a likelihood of vindictiveness, the burden shifts to the government to disprove it—is not available, the government says, because  “the Fourth Circuit has never presumed vindictiveness pretrial, let alone for initial charging decisions.”

This is only partly accurate. The reluctance to presume vindictiveness pretrial comes from the judiciary’s desire to respect prosecutorial discretion as part of the presumption of regularity. But the Fourth Circuit has also said that the presumption will be applied pretrial “rarely, if ever”—explicitly leaving room for those rare situations in which it is warranted.

To some extent, the defense answers this argument with its many discussions of a prosecution detached from standard practice. But Comey also points out that this “purportedly initial charging decision is downstream of a coordinated campaign that yielded a prior failed prosecution in another jurisdiction against the same defendant.” This case, in other words, can be viewed as a continuation of the previous failed indictment in an extended effort to take Comey to court at all costs.

Selective Prosecution

Proving a selective prosecution requires showing both discriminatory effect and discriminatory purpose. Typically, this discriminatory effect revolves around a defendant’s membership in a protected class. But a defendant can also present himself as a “class of one,” targeted for arbitrary factors, including the exercise of a constitutional right. To achieve this, a defendant must either identify “direct admissions” of discriminatory purpose or demonstrate that “similarly situated individuals” weren’t prosecuted, as well as that the decision to prosecute was in bad faith.

Here, Comey’s team argues that the aforementioned Truth Social post addressed to “Pam” declaring “JUSTICE MUST BE SERVED, NOW!!!” was a direct admission. And if it wasn’t, it’s at the very least one piece among many of objective evidence that the decision to prosecute was indeed made in bad faith, either in retaliation for First Amendment-protected speech or based on personal animosity—more examples of which are incorporated in the vindictiveness portion of the motion.

As for similarly situated individuals, the defense has a number to put forth. If the class in question is “people who posted to Instagram a photo of someone else’s seashell art spelling 86 47” there is, obviously, no comparator. But what about “people who posted 86 47 on social media”? There are so many that even Blanche has acknowledged the term is “posted constantly”—even admitting “every one of those statements do not result in indictments.” Replace “every one” with “only one,” and you’re just about there.

The defense also presents several instances in which public figures specifically have made statements about public officials—including the sitting president—of various degrees of violence. MAGA influencer Jack Posobiec, for instance, tweeted “86 46” in the Joe Biden days. Joe DiGenova, a veteran lawyer who until recently headed the Justice Department’s “Grand Conspiracy” investigation, said that former cybersecurity official Chris Krebs “should be drawn and quartered” or “taken out at dawn and shot.” Steve Bannon wanted to “go back to the old time of Tudor England” and put the heads of Dr. Anthony Fauci and then-FBI Director Chris Wray “on pikes.”

Rep. Paul Gosar (R-Ariz.) may have outdone all of them. He wrote that in a “better society, quislings like the strange sodomy-promoting General Milley would be hung [sic].” He also posted an anime video in which he stabs a character who looks strikingly like Rep. Alexandria Ocasio-Cortez (D-N.Y.) with a sword—and goes on to attack a character who looks like Biden.

None of these men has faced criminal charges.

The government’s task is to distinguish Comey from any comparators, and it endeavors to do so in a few ways. First, prosecutors argue, while those conservatively aligned public figures’ violent-seeming statements may well have concerned the sitting president, they didn’t concern the sitting president “after a string of assassination attempts.”

This, of course, doesn’t address the question of why the 200,000-plus items on Amazon with “86 47,” “86 46,” or “86 45” slogans aren’t comparable. So the prosecution seizes on Comey’s aforementioned novel “in which the antagonist gets his political rivals killed by communicating coded threats online.” Comey responds that not only had the novel not been published when the government originally mounted its “immediate” and “aggressive” response to the post, but also that the antagonist’s coded threats and the photo of seashells displaying “a shorthand of political opposition prevalent at protests” are, in fact, dissimilar.

Oddly, this means the government is relying on demonstrably protected speech as a means to prove that Comey isn’t being prosecuted in retaliation for his protected speech—admitting that his having written a work of fiction was part of the basis for his selection.

The government’s last explanation of why the defendant isn’t similarly situated to anyone who hasn’t been prosecuted rests on grammar rather than legal analysis. The alleged comparators, the prosecution says, are “accompanied by conditional or past-tense language.” This is an apparent reference to “should be drawn and quartered” and “would actually like to go back to the olde time” and with which an English teacher would have a field day.

“Should be drawn and quartered” isn’t conditional at all—it’s an unconditional expression of what the speaker believes ought, regardless of any eventuality, to happen. And while the “olde time” is in the past, the speaker would like to go back there presently. (The defense conducts its own linguistic analysis in a footnote, calling DiGenova’s statement “a modal auxiliary construction expressing a deontic judgment.”) The government’s analysis also presumably turns on the idea that “86 47” is itself communicating “a present-tense intention to kill President Trump.” But engaging in an extensive grammatical analysis of “86 47” is largely a pointless endeavor. It is, in the end, just numbers. It is also just seashells.

***

The Comey prosecution appears to be—to put it mildly—utterly lacking in merit. It is difficult to imagine that it will lead to a conviction. Whether Comey can end it before a jury is sworn in, however, is far from certain.

There’s an old saying in the law: The process is the punishment. Trump would almost certainly delight in seeing Comey behind bars. But forcing Comey to sit in court while a prosecutor presents a felony case to a jury—as weak a presentation as it’s likely to be—might be enough to make the president's day.