Defense counsel pointed to constitutional boundaries that shield hyperbolic political speech from prosecution.
"Whatever one thinks of Mr. Comey's message, the only question here is whether his post is protected speech.
Because it is, the indictment must be dismissed," they wrote.
The lawyers warned of broader societal consequences if criminal charges are permitted against political speech.
They cautioned that government officials have already signaled plans to target citizens who "copycat" Comey's political statement.
Federal prosecutors assert that a reasonable recipient would understand the image as a serious expression of intent to harm the president.
Following the post, Trump publicly characterized the phrase as a criminal call for violence, writing on Truth Social: "'86' is a mob term for 'kill him.'
They say 86 him! 86 47 means 'kill President Trump.'"
Trump further claimed Comey fully understood the violent interpretation when sharing the photo. "James Comey, who is a Dirty Cop, one of the worst, knows this full well!
EIGHT MILES OUT, SIX FEET DOWN!" Trump wrote.
The president publicly questioned Comey's truthfulness regarding his knowledge of the term's background. "Didn't he also lie to the FBI about this???
I think so!" Trump added.
Trump later reiterated his view during an interview with Fox News, stating, "A child knows what that meant."
He added that Comey's professional background made the intended meaning obvious: "If you're the FBI director and you don't know what that meant, that meant 'assassination.'"
Comey deleted the Instagram post shortly after publishing it in 2025 and issued a statement explaining his actions.
