Comey files motion to dismiss prosecution, citing Supreme Court precedent in brief
Key Takeaways
- •Comey was indicted in April on two felony counts related to an Instagram photo of seashells spelling out “86 47.”
- •Prosecutors and Trump allies have characterized the post as a threat against President Trump, while Comey’s lawyers reject that interpretation.
- •Comey filed a motion on Monday asking the case to be dismissed.
- •The defense brief argues that allowing the prosecution would depart from the nation’s history and tradition.
- •Joyce Vance said the filing uses the Supreme Court’s own reasoning in a pointed challenge to the court and the government.
On Monday, former FBI Director James Comey filed a motion to dismiss the prosecution tied to a photograph of seashells he shared on Instagram, and legal expert Joyce Vance noted that the 42-page brief included a “little jab” at the Supreme Court.
Comey was indicted in April on two felony counts over a photograph of seashells arranged on a beach to spell out “86 47.” The number 47 was understood as a reference to Trump as the 47th president of the United States, while 86 was interpreted as the informal term meaning to reject something or remove someone from a bar or restaurant.
Trump’s Justice Department and MAGA allies have portrayed Comey’s social media post as a threat against the president’s life, making the case a test of how prosecutors frame ambiguous political speech and how courts assess that framing.
In the filing, Comey and his legal team rejected the DOJ’s interpretation of the post and, in a passage Vance described as a “little jab” at the Supreme Court, used the court’s own language to argue that the case should be dismissed.
The brief states: “Allowing this prosecution to proceed would sharply depart from our Nation’s history and tradition,” a formulation Vance, a former U.S. attorney for the Northern District of Alabama, said carries particular weight with the Supreme Court’s conservative justices.
“The Court has infamously used the ‘history and tradition’ test in recent terms to reach the result-oriented outcomes it has landed on in culture wars cases like Dobbs, the abortion case, and Bruen, the Second Amendment case,” Vance wrote in an analysis published Tuesday on her Substack. Vance called the case against Comey “ridiculous.”
She added that the brief turns the Court’s own reasoning back on the government: “Here, they flip it back at the government, writing, ‘Under British law, citizens could be prosecuted and executed for speaking about the death of the King. But the Founders emphatically rejected that practice in the Constitution.’ Rather, we are ‘free to criticize government officials in direct and even strident terms.’ That principle is enshrined in the First Amendment.”