James Comey briefs are in. NC judge now weighs fate of ‘86 47’ case
AI-generated summary reviewed by our newsroom.
James Comey and federal prosecutors have made their arguments. Now a judge must decide whether and how the former FBI director’s “86 47” case should proceed toward an October trial.
Read more Panthers update status for RB Jonathon Brooks prior to season opener vs. Bears
On Tuesday, Comey and his attorneys filed what could be their last opportunity to persuade a federal judge to dismiss the felony case against him. The filing came at the end of a schedule set by the judge for motions and responses.
Since July, Comey and prosecutors have filed hundreds of pages arguing over his bid to dismiss the federal charges accusing him of threatening President Donald Trump with an Instagram photo showing seashells arranged to read “86 47” on a North Carolina beach.
“Eighty-six” is commonly used as slang for getting rid of something or taking it off a menu, but prosecutors contend it can also mean to kill and that “47” referred to Trump, the 47th president.
U.S. District Court Judge Louise Flanagan could rule on one or more of Comey’s motions or schedule a hearing before deciding how the case proceeds, legal experts told The News & Observer.
President George W. Bush nominated Flanagan for the lifetime position in 2003. She was the first woman to be confirmed as a U.S. District Court judge in the Eastern District.
Under Flanagan’s current schedule, Comey is scheduled to enter a plea in New Bern on Sept. 30. His trial is set for Oct. 21.
Any motion for a continuance should be filed seven days before the plea and must state a good cause.
In July, Comey asked the judge to dismiss the two federal charges, contending that the post doesn’t meet the legal definition as a “true threat.”
Comey also argued that he was selectively and vindictively prosecuted because of his criticism of Trump, who cut Comey’s stint as FBI director short in 2017.
Prosecutors responded with filings in August that included an affidavit from U.S. Attorney Ellis Boyle, who said he wasn’t “pressured, coerced, or motivated” by others when he decided to prosecute Comey.
“I came to the determination that the evidence supported a finding that Defendant James Comey committed the threat offenses,” Boyle said in the sworn statement. Boyle was appointed under the Trump administration in August 2025 and confirmed by the Senate in May.
Read more Lawyer disciplined by NC State Bar for sending photo of his genitals to opposition
Assistant U.S. Attorney Tim Severo is the lead prosecutor in the case.
In the August filings, prosecutors argue that a jury should decide whether Comey’s message was a threat. They want jurors to hear about the association of “86 47” with violence, the repeated assassination attempts against Trump and the plot of a Comey novel featuring a podcaster whose comments prompt fans to kill or injure his adversaries.
In May 2025, Comey shared the “86 47” photo with his 200,000 Instagram followers while visiting Emerald Isle.
“Cool shell formation on my beach walk,” he wrote.
After receiving backlash, including a harsh text from an estranged relative explaining that “86” implies violence, Comey deleted the post, according to court filings.
Afterward, Secret Service members began organizing an investigation that included identifying Comey’s cell phone location on North Carolina’s Crystal Coast without a warrant, court documents state. The next day, U.S. Secret Service agents followed him and his wife Patrice as they drove down Interstate 95 returning to their home state of Virginia.
In April, a grand jury in the federal Eastern District of North Carolina charged Comey with threatening the president and transmitting a threat across state lines. Each charge carries a maximum sentence of five years in prison.
In addition to seeking dismissal, Comey asks the judge to hold a hearing on the warrants used to review his and his wife’s Apple and Google accounts. The affidavits presented to judicial officials omitted evidence of Comey’s innocence, relied on a biased witness and wrongly accused his attorney and wife of obstructing the investigation, Comey argues in court documents.
Comey also seeks disclosure of the grand jury proceedings, arguing that prosecutors likely “misinstructed the grand jury” about the legal standard for a “true threat.” He contends that prosecutors have “consistently” confused that standard with the standard for incitement, a charge he does not face.
Comey has assembled a 10-member legal team led by Patrick J. Fitzgerald, according to court filings. Fitzgerald, a former U.S. Attorney in Chicago, prosecuted two Illinois governors and former George W. Bush administration official Scooter Libby. He and Comey worked together in the 1990s as federal prosecutors in Manhattan, where they both participated in the prosecution of the Gambino crime family.
Comey’s background prosecuting mob cases has become a factor in the current case, as federal agents have interviewed organized crime members in an effort to show that Comey was aware of the violent connotation of “86.”
Raleigh-based attorney Joseph Zeszotarski Jr., the only member from North Carolina, serves as local counsel.
This story was originally published September 2, 2026 at 3:36 PM with the headline “James Comey briefs are in. NC judge now weighs fate of ‘86 47’ case.”
Read more Cabarrus is the only one of NC’s 10 largest school districts to reach this goal
