Comey’s lawyers say they will challenge threat charges as vindictive

Lawyers for James B. Comey said Wednesday they intend to challenge the indictment accusing him of threatening the life of the president as an illegal attempt to punish the former FBI director for his criticism of Donald Trump.

Defense lawyers Patrick Fitzgerald and Jessica Carmichael signaled those plans during Comey’s first court appearance in the case, which marks the Justice Department’s second attempt in less than a year to convict him of a crime.

Comey said nothing during the roughly five-minute, largely procedural hearing before U.S. Magistrate Judge William E. Fitzpatrick at the federal courthouse in Alexandria, Virginia, and declined to comment afterward. Fitzpatrick rejected a government request to place restrictions on Comey’s release and allowed him to leave the courthouse, pending a hearing in North Carolina where he will enter a plea to the charges.

“I don’t think conditions of release are necessary,” the judge said. “They weren’t necessary the last time, and I don’t see why they’d be necessary this time.”

Fitzpatrick also presided over Comey’s initial court appearance in a separate case brought last year, when he briefly faced charges of lying to Congress.

The indictment returned Tuesday by a federal grand jury in North Carolina alleges that a photo Comey posted on social media in 2025 constituted a dangerous threat to the president. He is charged with one count of making threats against the president and another count of transmitting a threat across state lines.

Though prosecutors Tuesday had asked a court in North Carolina to issue a warrant for Comey’s arrest, his surrender shortly before Wednesday’s hearing to federal authorities in Virginia, where Comey lives, preempted the possible spectacle of agents seeking out one of the nation’s former top law enforcement officials and taking him into custody.

Comey was named FBI director by President Barack Obama. Trump fired Comey four years later over his handling of the investigation into the 2016 Trump campaign’s ties to Russia. The former FBI director has emerged in the years since as a vocal critic of the president.

The new case against him centers on a photo he posted to Instagram nearly a year ago, depicting the numbers “86 47” written in seashells on a beach with the caption, “Cool shell formation on my beach walk.” Trump and his allies quickly condemned the post as a call for violence against the president, noting that “86” is often slang for nixing or removing something and Trump is the 47th president.

Comey quickly removed the message after that criticism and apologized. He suggested at the time that he stumbled on the formation and did not arrange the shells himself. He said he did not know that “86” could be interpreted as a threat to kill.

“I didn’t realize some folks associate those numbers with violence,” Comey said in a follow-up post. “It never occurred to me but I oppose violence of any kind so I took the post down.”

Comey issued a video statement after his indictment Tuesday maintaining his innocence and denouncing the case as the latest attempt by the Justice Department, under Trump, to put the pursuit of the president’s personal vendettas over justice.

“This won’t be the end of it,” Comey said. “Nothing has changed with me. I am still innocent, I am still not afraid and I still believe in the independent federal judiciary. So let’s go.”

Legal experts have questioned the strength of the indictment, noting that prosecutors must prove not just that Comey’s post could be interpreted as a threat against the president but also that Comey knowingly intended it that way. Others have pointed to a past ruling from the U.S. Supreme Court that has recognized political rhetoric or hyperbole that does not convey an actual intent to do harm as protected First Amendment speech.

Speaking to reporters Wednesday, Trump said he thinks of “86” as a “mob term” that means “kill him.” But when pressed on whether he viewed Comey’s post as a threat to his life, the president accused the former FBI director of a host of other crimes that had nothing to do with the allegations in the indictment.

“Comey is a dirty cop,” Trump said. “He’s a very dirty cop. He cheated on the elections. He tried to help Hillary Clinton, as you know, he dismissed a lot of things that he should have proceeded with.”

In court, Comey’s attorneys said they intend to file a motion for dismissal for vindictive and selective prosecution. They raised similar arguments last year, when the Justice Department charged Comey in a separate case in Alexandria alleging he lied to Congress in 2020 over whether he had leaked investigative information to the press.

A judge never ruled on Comey’s motion in that earlier case because those charges were dismissed beforehand over issues with the appointment of the U.S. attorney who brought the case. The Justice Department continues to appeal that decision.

Comey’s defense is likely to bolster its arguments that prosecutors selectively chose to prosecute Comey by noting several instances of Trump allies using similar language on social media without facing similar consequences.

For example, far-right activist Jack Posobiec posted a message to X in 2022 that said only, “86 46.” Joe Biden was serving as the 46th president at the time. Posobiec is a vocal Trump supporter who has been promoted by Trump on social media and invited to participate in a “new media” briefing at the White House during Trump’s second term.

Then-Rep. Matt Gaetz (R-Fla.) used the term “86” in a post in 2024, noting the toppling of former House Speaker Kevin McCarthy, former Senate Majority Leader Mitch McConnell and former Republican National Committee Chair Ronna McDaniel. He said “we’ve now 86’d” them all and “better days are ahead for the Republican Party.”

Trump later announced his intent to nominate Gaetz for attorney general, but the congressman withdrew from consideration.

Acting attorney general Todd Blanche rejected the suggestion that there was any similarity between Comey’s case and those other posts during a Justice Department news conference Wednesday and insisted that politics were not involved in the decision to charge the former FBI director.

Still, Blanche stopped short when asked whether he was confident the Justice Department’s case would result in a conviction.

“I know that a grand jury returned a two-count indictment. I know that this case was investigated for the past year. I do not know what a jury of his peers will do at trial,” Blanche said. “That will come at some point in the future.”