Former FBI head Comey appears in court on charges of threatening Trump

Summary

• James Comey surrendered in Virginia and appeared in court, released on his own recognizance pending a plea hearing in North Carolina.
• Federal indictment centers on Instagram post featuring “86 47,” alleged by prosecutors to imply a threat against President Trump.
• Defense team plans to argue vindictive and selective prosecution, raising First Amendment concerns over protected speech.

Former FBI director James B. Comey surrendered to federal authorities in Virginia on Wednesday and appeared in court for the first time since his indictment on charges of threatening the life of President Donald Trump.

During Comey’s brief appearance, U.S. Magistrate Judge William E. Fitzpatrick released him on his own recognizance until a hearing in which he will enter a plea before a federal judge in North Carolina, where the case against him was filed Tuesday.

Comey said nothing during the roughly-five minute proceeding, as he sat at the defendant’s table between his attorneys, Patrick Fitzgerald and Jessica N. Carmichael. Fitzgerald told the judge that Comey’s defense team plans to challenge the case on grounds of vindictive and selective prosecution.

The case is the second time the Justice Department has charged Comey, a longtime critic of President Donald Trump, with a crime. Though prosecutors had asked a federal judge in North Carolina to issue a warrant for Comey’s arrest, his surrender Wednesday prevented the need for authorities to seek him out and take him into custody.

The new charges center on a photo Comey 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 during a walk along the beach 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 his follow-up post. “It never occurred to me but I oppose violence of any kind so I took the post down.”

After his indictment Tuesday, the former FBI director issued a video statement maintaining his innocence and denouncing the case against him 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 that Comey was not only aware of how the message could be read but also that he intended it as a threat to the president. 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.

Comey’s attorneys said they intend to challenge the case on the grounds that the prosecution is a vindictive effort by the Trump administration to punish him for his criticism of the president.

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 ever leaked information to the press. However, a judge never ruled on Comey’s motion as the case was dismissed beforehand over issues with the appointment of the U.S. attorney who brought the case. The Justice Department continues to appeal that decision.

Asked Tuesday how the Justice Department would respond in court to any similar claim from Comey on his new charges, acting attorney general Todd Blanche rejected the suggestion that there were political motives behind the case.

“While this case is unique and this indictment stands out because of the name of the defendant,” Blanche told reporters, “his alleged conduct is the same kind of conduct that we will never tolerate and that we will always investigate and regularly prosecute.”