Left: President Donald Trump walks to board Air Force One at Naval Station Norfolk Chambers Field in Norfolk, Va., Sunday, Oct. 5, 2025. (AP Photo/Alex Brandon). Right: Former Director of the Federal Bureau of Investigation James Comey laughs while addressing a gathering at Harvard University’s Institute of Politics’ JFK Jr. Forum in Cambridge, Mass., Monday, Feb. 24, 2020. (AP Photo/Charles Krupa).
Months after President Donald Trump told a reporter “probably, I don’t know” when asked if James Comey put his life in mortal “danger,” the ex-FBI director once again under indictment has countered that “no reasonable person” would think an image of seashells in the sand in an “8647” formation was a “true threat.”
Comey’s motion to dismiss predictably cited favorable rulings out of Washington, D.C., where another federal judge found that protesters’ “8647” flag-flying on National Park Service property near the National Mall was neither “an incitement to violence” nor a “true threat” against Trump’s life.
There, U.S. District Judge Randolph Moss wrote and later reiterated multiple times that the administration could not go after their permits, leading to a permanent injunction in late June.
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Comey’s lawyers Patrick Fitzgerald, Ephraim McDowell, Rebekah Donaleski, and Michael Dreeben called Moss’ rulings “instructive,” likewise arguing that “86” typically does not mean “to kill” but to “get rid of” — here, to “throw out” of office through the political process.
After all, an “8646 Impeach Biden T-shirt” is for sale on Amazon, the attorneys noted.
The Trump DOJ’s attempted criminalization of such speech cuts “at the heart of the First Amendment,” said the Monday motion in the U.S. District Court for the Eastern District of North Carolina.
“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,” the filing said. “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. To justify this prosecution, the indictment alleges that Mr. Comey’s ’86 47′ post constitutes a ‘true threat’ on the President’s life. That claim is contradicted by every possible source of meaning: dictionaries, context, precedent, and common sense. ’86’ simply means ‘get rid of’ or ‘eject’ and has no violent connotation except in the most uncommon usages,” the defendant’s attorneys went on, arguing that Comey quickly deleted the post in the first place not realizing it could have been perceived as a threat.
To support that Comey was “single[d] out” for prosecution, the motion pointed to examples of Republicans who used the term “86” in the way that the defendant insists he did.
We’ve now 86’d:
McCarthy
McDaniel
McConnellBetter days are ahead for the Republican Party. https://t.co/qZEZ7s9Ly6
— Matt Gaetz (@mattgaetz) February 28, 2024
Comey then suggested his “public social media post of somebody else’s arrangement of seashells” while out on a beach stroll was, in any event, “far tamer” than Trump’s own words about Hillary Clinton, Liz Cheney, and Democrats in Congress:
The President himself has often used this type of rhetoric. Recently, President Trump asserted that a video posted by several Members of Congress criticizing military policy was “punishable by death” and was cause for “hang[ing] them.” Ana Faguy & Brandon Drenon, Trump Says He Was ‘Not Threatening Death’ to Democrats over Video to Troops, BBC News (Nov. 21, 2025). 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. US Election: Anger over Donald Trump Gun Rights Remarks, BBC News (Aug. 10, 2016).
And while discussing former Representative Liz Cheney, President Trump said: “She’s a radical war hawk. Let’s put her with a rifle standing there with nine barrels shooting at her, OK? Let’s see how she feels about it, you know, when the guns are trained on her face.” Sam Cabral, Trump Says Cheney Wouldn’t Be ‘War Hawk’ if ‘Guns are Trained on Her’, BBC News (Nov. 1, 2024). As one district court explained when dismissing a threats indictment, if the President may use “coarse” and violent language “from the highest office in the land,” then “surely a [private] citizen should likewise be allowed to vent his grievances.”
As a result, the defendant has asked U.S. District Judge Louise Wood Flanagan, a George W. Bush appointee, to toss the prosecution with “prejudice,” so it can’t be brought again.
“The government cannot evade such foundational principles simply by mischaracterizing a political statement as a ‘threat,'” the motion asserted.
The post ‘Instructive’: A federal judge repeatedly slapped down the Trump administration in an ‘8647’ case, and James Comey’s lawyers noticed first appeared on Law & Crime.
