Trump’s Posts May Prove Comey’s Vindictive and Selective Prosecution Claims | American Enterprise Institute

Be careful what you say on social media, no matter how rich, famous, and powerful you are. Your posts could come back to haunt you when a defendant contends you’re prosecuting him to exact retribution on a perceived political enemy. This holds true even when the “you” is the nation’s president.

It’s a lesson that might be drawn from former Deputy Attorney General and FBI Director James Comey’s July 28 memorandum supporting his motion to dismiss—on vindictive and selective prosecution grounds—an April federal indictment charging him with threatening Trump’s life.  

I’ve twice analyzed the indictment, which centers on a 2025 photo Comey took and posted on Instagram of seashells he says he spotted on a North Carolina beach. They were arranged in an “86 47” formation, and Comey added a caption: “Cool shell formation on my beach walk.”

Comey, whom Trump fired as FBI director in May 2017, maintains that “86 47” is “shorthand for political opposition to President Trump, the 47th President,” a “familiar slogan” conveying a “protest message,” and “a nonviolent political statement.” Conversely, the indictment asserts it’s a “threat to kill” Trump and “a serious expression of an intent to do harm to” him.

On July 27, Comey filed a separate motion to dismiss the indictment on grounds that his post is not a true threat of violence “outside the bounds of First Amendment protection.” The motion asserts that “the indictment targets and chills core political speech” and contends that the government’s claim that “86 47” threatens Trump’s life “is contradicted by every possible source of meaning: dictionaries, context, precedent, and common sense. ‘86’ simply means ‘get rid of’ or ‘eject’ and has no violent connotation except in the most uncommon usages.” Comey’s motion thoroughly and compellingly argues that his seashells post isn’t an unlawful true threat.

If that argument doesn’t work for Comey, then attention will shift to his July 28 motion to dismiss the indictment on grounds of prosecutorial vindictiveness and selective prosecution. This is where Trump’s social media posts may benefit Comey.

Comey contends Trump’s statements on X and Truth Social reveal not only the president’s “deep personal animus” and “personal antipathy” toward (and his “personal bias” against) Comey and Comey’s First Amendment-protected critiques of Trump, but also demonstrate Trump’s doggedly determined efforts to get the Justice Department to prosecute him. Furthermore, Comey alleges the posts illustrate that he’s being selectively prosecuted in violation of equal protection principles because they expose impermissible discriminatory motives and factors underlying the government’s case.

In his vindictive and selective prosecution motion, Comey positions himself—since shortly after Trump fired him—as a quintessential citizen-critic of a high-ranking government official, “vigorously and prominently exercis[ing] his First Amendment right” to condemn and challenge Trump’s actions and policies. That’s important because the Supreme Court extolls the value of “the citizen-critic of government,” declaring in 1964 that “it is as much his duty to criticize as it is the official’s duty to administer.” It’s also significant on the vindictive prosecution theory: It primes Comey’s argument that the government is unlawfully prosecuting him in retaliation “for his public criticisms of the President,” thereby violating the Fifth Amendment’s Due Process Clause and the First Amendment’s guarantee of free speech.

Here are examples of posts Comey cites to bolster his vindictive and selective prosecution theories by helping to establish key concepts such as genuine animus, arbitrary bias, and impermissible discriminatory prosecutorial purposes. Starting in 2018, Trump has posted that Comey is a: “proven LEAKER & LIAR,” “weak and untruthful slimeball,” “total SLIMEBALL,” “DIRTY COP,” and “corrupt piece of garbage.” Trump’s posts have branded Comey as: “Shadey [sic],” “very sick or very dumb,” “crooked as hell,” and “[o]ne of the worst human beings this Country has ever been exposed to.”

Beyond such expressions of animus and bias against Comey, Trump has posted about his desire for Comey to face criminal charges, bluntly stating on X in 2018 that Comey “should be prosecuted.” Even more significant is a September 2025 Truth Social post directed at then-Attorney General Pamela Bondi:

“Pam: . . . Nothing is being done. What about Comey, Adam ‘Shifty’ Schiff, Leticia [James]??? They’re all guilty as hell, but nothing is going to be done. . . . We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!! President DJT.”

Comey calls this “a direct admission that the decision to prosecute [him] was not based on the DOJ’s good-faith application of law to facts. Instead, it was based on President Trump’s personal antipathy toward” him, thus proving selective prosecution.

If Trump’s posts ultimately lead to the indictment’s dismissal, it will provide a cautionary tale about the dangers of running one’s vengeance-filled mouth on social media.