James Comey's lawyers are urging a federal judge in North Carolina to permanently dismiss the former FBI director's "8647" seashells threat prosecution, arguing that President Donald Trump's "vindictive motive" and "personal animus" toward their client have corrupted the government's case beyond repair.
Background
The criminal case stems from an Instagram post Comey made depicting a "cool shell formation" he discovered during a beach walk with his wife Patrice. Federal prosecutors allege the post contained coded threats using "86," slang meaning to kill or eliminate someone, and "47," which they claim references some other context connected to Trump.
Comey's legal troubles began after former Attorney General Pam Bondi and eventual AG Todd Blanche reportedly found the evidence against him weak. The Secret Service initially categorized the case as "non-referred" after what participants described as investigation steps that were "overkill" and "legally questionable."
The Virginia prosecution collapsed when a district court dismissed an indictment obtained by Lindsey Halligan, whom Trump had personally selected but who lacked proper appointment authority. It was only after Comey prevailed in the Virginia case—and "the President increased pressure on Mr. Blanche to 'audition' for the Attorney General role"—that the government reinvigorated this North Carolina investigation and secured a new indictment.
The Investigation
In a 20-page reply memorandum filed Tuesday, Comey's legal team followed the road map established in Kilmar Abrego Garcia's successful vindictive prosecution challenge. They are asking U.S. District Judge Louise Flanagan to find that a "presumption of vindictiveness" entitles Comey to an evidentiary hearing where the DOJ must rebut the presumption.
A federal judge in Tennessee dismissed the wrongfully deported Garcia's criminal human smuggling case in May, finding the government failed to rebut his "prima facie showing of some evidence of a realistic likelihood of vindictiveness." The DOJ has appealed that decision to the 6th U.S. Circuit Court of Appeals, arguing it opens the door to "dangerous" and "unwarranted probing of the mental states and motivations of government officials."
Comey's lawyers argue that precedent now allows courts to impute "the animus of current DOJ officials" to federal prosecutors. They contend Trump's "voluminous record of public statements" expressing personal animus toward Comey "caused this vindictive prosecution."
"It is well established that a defendant may demonstrate that 'the prosecutor acted with genuine animus toward the defendant' by showing either that the prosecutor himself 'harbored genuine animus toward the defendant' or that the prosecutor 'was prevailed upon to bring the charges by another with animus such that the prosecutor could be considered a 'stalking horse,'" the filing stated.
Key Takeaways
- Comey faces prosecution in North Carolina over an Instagram post depicting seashells his wife found on a beach walk; prosecutors claim "86" constitutes a coded threat
- His lawyers cite Kilmar Abrego Garcia precedent to argue Trump's personal animus and vindictive motive warrant dismissal or evidentiary hearing
- Former AG Pam Bondi and Todd Blanche reportedly believed the evidence against Comey was weak before moving forward with charges
- A federal judge in Tennessee recently dismissed a case on similar vindictive prosecution grounds, finding the government failed to rebut presumption of vindictiveness
- The DOJ is appealing that Tennessee ruling while also challenging dismissal of Comey's separate Virginia false statements indictment
What's Next
Judge Louise Flanagan must decide whether to grant Comey's motion to permanently dismiss the seashells case or order an evidentiary hearing where prosecutors would need to demonstrate their charging decisions were not motivated by presidential animus. The evidentiary hearing standard established in the Garcia decision would require the government to rebut a presumption that charging decisions following Comey's Virginia victory were vindictive.
Even if the vindictive prosecution motion fails, prosecutors must still prove at trial that Comey's Instagram post constituted a "true threat" under applicable legal standards—a burden they have not yet satisfied in court proceedings. The case raises fundamental questions about prosecutorial discretion and whether courts can examine the motivations behind federal charging decisions when a president has publicly expressed hostility toward a defendant.