Comey will challenge Trump seashells threat indictment as vindictive prosecution, lawyer says

Former FBI Director James Comey appeared in Alexandria, Virginia, federal court on Wednesday, a day after a two-count indictment charged him with threatening to kill President Donald Trump last May by posting on Instagram a photo of seashells arranged to form the message "86 47" on a North Carolina beach.

Comey's lawyer, Patrick Fitzgerald, told Magistrate Judge William Fitzpatrick that he intends to file a motion to dismiss the case on the grounds of vindictive prosecution.

Fitzgerald had filed such a motion when Comey was indicted in another federal criminal case last fall, which was later tossed out on other grounds.

Fitzgerald, a former top federal prosecutor, asked the judge about preserving inflammatory statements about Comey that have been made by both Trump and the Department of Justice.

The judge, Fitzpatrick, pointedly referenced the prior case when he said Comey could continue to remain free without any conditions as the case heads to trial. Fitzpatrick had been the magistrate who handled Comey's first appearance in that case.

"They weren't necessary the last time and I don't see why they should be this time," the judge said.

Comey's initial appearance in the case lasted only about seven minutes. His wife and other members of his family were in the gallery.

He did not enter a plea in the case, which will be prosecuted in the U.S. District Court for the Eastern District of North Carolina.

"I'm still innocent, I'm still not afraid, and I still believe in the independent federal judiciary, so let's go," Comey said Tuesday, after the indictment — the second against him in less than a year — was unsealed in North Carolina

Comey's first appearance in the case was in Alexandria because that is the closest federal court to his home.

Trump and the Department of Justice have claimed that the numbers "86 47" represented a threat to assassinate Trump.

"86" is slang for ejecting or removing a person, according to dictionaries, and Trump is the 47th president of the United States.

On Wednesday, Trump was asked by a reporter at the White House whether he actually believed that Comey had threatened his life.

"Well, if anybody knows anything about crime, they know '86, you know ... a mob term for 'kill him,' " Trump replied. "You know, you ever seen the movies. '86' the mobster says to one of his wonderful associates. '86' that menas kill him. I think of it as a mob term."

Trump also said "probably" when asked if his life was in danger from Comey's photo.

The president then repeated claims he has made in the past about Comey being "a dirty cop," who "cheated on elections" and "tried to help Hillary Clinton," Trump's opponent in the 2016 presidential election.

Comey said last May that he took the photo of the shells after seeing them on the beach during a vacation in North Carolina, and that he assumed it was a "political message."

"I didn't realize some folks associate those numbers with violence," Comey said after backlash to the photo that erupted shortly after he posted it. "It never occurred to me, but I oppose violence of any kind so I took the post down."

Comey removed the photo less than a day after posting it.

FBI Director Kash Patel said at a news conference on Tuesday announcing the charges against Comey that the FBI has been investigating the case for the past "nine, 10, 11 months."

But the three-page indictment against Comey is notably sparse on details of any evidence that the FBI might have dug up against him, other than the photo of the shells and a claim that Comey meant to convey the threat that Trump alleged was meant by their arrangement.

The indictment says Comey "knowingly and willfully did transmit in interstate and foreign commerce a communication that contained a threat to kill the President, Donald J. Trump, specifically, by publicly posting a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out '86 47', which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to President Trump."

Comey is charged with threatening the president and with transmitting a threat in interstate commerce.

The federal magistrate judge expected to handle Wednesday's hearing was William Fitzpatrick, who, coincidentally, is the same magistrate who in September handled Comey's first indictment by the DOJ in the Eastern District of Virginia.

Comey, in that case, was accused of lying to the Senate Judiciary Committee in 2020 when he denied authorizing someone else at the FBI to be an anonymous source in news reports regarding an investigation of Hillary Clinton and her emails when she was the Democratic presidential nominee in 2016.

That indictment was seen by critics of Trump and the DOJ's current leadership as retaliation against Comey for his role at the FBI in an investigation of Trump's 2016 campaign and its contacts with Russians.

The first indictment was dismissed in November after another federal judge found that then-interim U.S. Attorney Lindsey Halligan, who had obtained the indictment, had not been validly appointed by Trump.

— MS Now's Fanon Gallagher contributed reporting to this article