Former FBI head James Comey alleges Trump vendetta in bid to dismiss ‘86 47’ seashell case

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Former FBI Director James Comey Jr. is asking a federal judge to throw out the criminal case accusing him of threatening President Donald Trump, arguing prosecutors brought the case not because of what he posted on Instagram, but because of who he is.

In motions filed Tuesday night, Comey’s attorneys argue he is being selectively and vindictively prosecuted over his “86 47” Instagram post, which showed seashells Comey says he found on a beach arranged in a way prosecutors say threatened the president.

His attorneys contend prosecutors are targeting Comey as part of a years-long campaign by Trump to punish one of his critics. Comey’s indictment, his second within a year, should be dismissed because it violates his constitutional rights to free speech, due process and equal protection under the law, his attorneys argue in a memorandum on the motion.

Comey’s attorneys acknowledge selective and vindictive prosecution claims rarely lead to dismissal. But they argue this case warrants it because the U.S. Justice Department has abandoned its decades-long tradition of independence and integrity that guarded against the criminal process being used “to punish enemies or settle scores.”

“Ample objective evidence — much of which comes directly from government officials’ own public statements and admissions —establishes that the President’s animus toward Mr. Comey led to this vindictive and selective prosecution,” the memo states.

Comey’s request asking U.S. District Judge Louise Flanagan to dismiss the two federal charges was among three motions filed on his behalf Tuesday night.

A second motion seeks to exclude evidence collected after searches of Comey’s Apple account and his and his wife’s Gmail accounts. In that motion, Comey’s attorneys argue that the agent who sought search warrants for the accounts included “outright false statements” and left out information that disproved Comey was aware of a “violent alternative meaning” of the term“86.”

The warrants also include “reckless insinuations” that Comey and his wife obstructed the investigation, Comey’s attorneys say in court filings.

A third motion asks for a hearing on a motion to disclose the grand jury proceedings that led to Comey’s indictment.

“The highly irregular procedures that led to the indictment create a significant risk that the government misrepresented key issues of fact and law to the grand jury,” the filing states.

On Monday, Comey’s attorneys filed a motion to dismiss the case, arguing that the Instagram post was protected political speech, not a true threat against the president.

In an interview earlier this year, Ellis Boyle, the U.S. attorney overseeing the Eastern District of North Carolina, rejected criticism that his office was pushing the limits of the law to carry out President Donald Trump’s agenda.

“We approach every potential threat prosecution individually and regard it on its merits,” Ellis told The News & Observer. “If we believe that there is a case to be prosecuted to protect Americans and society, we undertake it.”

Ellis, who was appointed to the office under the Trump administration in August 2025, was confirmed by the Senate in May.

The government responses to Comey’s filings are due Aug. 18, according to a schedule set by Flanagan. Comey’s legal team will have to respond to those filings by 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.

The U.S. Constitution guarantees rights of due process and equal protection, requiring federal prosecutors to apply the law fairly.

Selective prosecution occurs when a prosecutor seeks a conviction based on “unjustifiable standards or characteristics rather than the merits of an actual, alleged crime,” according to Cornell Law School’s Legal Information Institute.

Those characteristics could include race, religion or political opinion.

To prove selective prosecution, defendants have to show “that prosecutorial policy had both a discriminatory purpose and effect, generally including a showing that similarly situated individuals were not prosecuted,” states a brief by Cassandra Barnum, an attorney with the Congressional Research Service, which provides legal and policy analysis to Congress.

Vindictive prosecution is when a prosecutor seeks a conviction for an alleged crime in retaliation or to punish someone for exercising rights, such as free speech, according to Cornell’s legal institute.

Defendants alleging vindictive prosecution must prove an improper prosecutorial motive and “show that the charges were brought solely to penalize” someone for exercising their legal rights, Barnum wrote.

The North Carolina case stems from a May 2025 Instagram post Comey shared with his 200,000 followers. Comey shared a photo of seashells arranged to read “86 47,” which he said he found on a North Carolina beach.

Trump and federal prosecutors say the post amounted to a threat against the president. 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.

This story was originally published July 29, 2026 at 8:08 AM with the headline “Former FBI head James Comey alleges Trump vendetta in bid to dismiss ‘86 47’ seashell case.”