Allowing the seashells-based prosecution of former FBI Director James Comey to move forward would erode core constitutional rights protecting free speech, Comey’s legal team told a federal judge in North Carolina on Tuesday.
On Tuesday, members of Comey’s eight-person legal team filed a motion asking a judge to toss the seashells case, saying it is “not based on a good-faith application of the law to the facts; instead, it effectuates a yearslong campaign by the President to use the criminal process to punish Mr. Comey for his protected speech and because of the President’s deep-seated animosity.”
The Trump-driven case must be cast aside “under two bedrock legal doctrines,” they said: that the case was instigated based on Comey’s protected speech and that the government engaged in selective prosecution.
“Dismissal of federal criminal charges under these doctrines has historically been rare. That is because for decades the DOJ’s independence and integrity have guarded against the use of the criminal process to punish enemies or settle political scores,” they wrote. “The prosecutions of Mr. Comey mark a sharp break from that tradition.”
Comey’s team also filed a separate motion Tuesday seeking the disclosure of grand jury records in the case, arguing that while “grand jury proceedings are typically entitled to a presumption of regularity, the irregularities surrounding the return of the indictment in this case overcome that presumption.”
Comey’s team had already argued Monday that the seashells case should be tossed because Comey’s Instagram post was not a true threat, arguing that “dictionaries, context, precedent, and common sense” gut the Trump administration’s claims about the meaning of the numbers “8647.”
A Justice Department official who was not authorized to discuss the case previously told NBC News that the case was a “complete loser” and a “waste of resources” and predicted that it would be tossed before trial. “No reasonable person could believe that Comey intended to threaten the president via seashells,” the person said. “Everyone at this DOJ should be ashamed. I know I am.”
U.S. District Judge Louise Flanagan is overseeing the case. If the case survives to trial, Comey would be arraigned Sept. 30, and the trial would take place Oct. 21 in New Bern, North Carolina.
Matthew Petracca, a rookie federal prosecutor and former Republican official in New Jersey, brought the case under the U.S. attorney for the Eastern District of North Carolina, W. Ellis Boyle, a Trump administration appointee, but he dropped off the case in late May.
In one of their motions, Comey’s lawyers note that Petracca became an actual assistant U.S. attorney on April 26, just two days before the Comey case was brought.
“We note that Mr. Petracca was at all times professional in his interaction with the defense team,” Comey’s attorneys wrote. “We only note his limited experience in that it is unusual in most circumstances for such a high-profile case to be delegated to a junior attorney.”
Petracca, they write, had a “background in state Medicaid fraud and little federal criminal experience” and has since “withdrawn from the case and transferred to the Civil Division.” Assistant U.S. Attorney Timothy Severo is now heading the prosecution.
Comey’s team made a similar argument of vindictiveness and selective prosecution after former White House aide Lindsey Halligan brought a case against him over testimony he gave in 2020. Included in that filing was a 60-page list of statements that Trump made about Comey from May 2017 to the fall of 2025.
But a judge never ruled on the arguments of vindictiveness and selective prosecution in that case, instead finding the entire case was invalid because Halligan could not legally hold the position she claimed.
