Comey Asks a Judge to Throw Out the '86 47' Charges, Calling Them a Prosecution of Political Speech

Former FBI Director James Comey asked a federal judge on July 27, 2026 to dismiss the two counts of threatening to kill the president that stem from an Instagram photo he briefly posted in 2025 showing seashells arranged to read "86 47." His lawyers argued the indictment "targets and chills" political speech and that the First Amendment bars the government from using criminal prosecution to punish a political opponent. "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 filing says, adding that it "would invite future prosecutions by the Executive Branch against perceived political enemies." The defense contends "86" means "to get rid of" or "eject" and carries no violent connotation in ordinary usage; prosecutors say a "reasonable recipient" would read the image as a serious expression of intent to harm the president.

The motion is the first of several Comey is expected to file, including claims that the prosecution is selective and vindictive. It puts squarely before a court the question of whether the Justice Department may charge a named critic of the president over a social media post.

Comey is set to be arraigned in late September and has said he is innocent. A separate 2025 indictment against him was dismissed after a judge found the prosecutor who secured it had been improperly appointed; the Justice Department has appealed that ruling.