Prosecutor Exits Comey Case as First Amendment Battle Looms
The lead federal prosecutor handling the Justice Department’s criminal case against former FBI Director James Comey has abruptly stepped down, raising questions about the strength of an indictment that legal experts say faces a monumental First Amendment challenge.
Assistant U.S. Attorney Matthew Petracca, the rookie prosecutor who brought the case before a federal grand jury, was removed from the court docket in a notice of substitution filed Friday in the Eastern District of North Carolina. Assistant U.S. Attorney Timothy Severo will replace him as counsel for the government, according to Fox News.
The filing from U.S. Attorney W. Ellis Boyle did not explain the change. NBC News reported that Petracca had considered leaving the Justice Department altogether but decided against it after taking a week off.
The Charges and the ‘86 47’ Post
Comey faces two federal charges — threatening the life of the president (18 U.S.C. § 871) and transmitting a threat in interstate commerce (18 U.S.C. § 875(c)) — carrying up to 10 years in prison. The charges stem from a May 2025 Instagram post showing seashells arranged to read “86 47.”
Prosecutors argue that “86” — a term widely used in the restaurant industry meaning to get rid of something — is also known in law enforcement as a mob term for assassination, while “47” refers to Donald Trump as the 47th president. The indictment alleges the post represented “a serious expression of an intent to do harm” to the president.
Comey has denied any threatening intent, saying he viewed the image as a political statement and deleted the post after realizing some people associate the numbers with violence. “Nothing has changed with me. I’m still innocent. I still believe in the independent federal judiciary. So, let’s go,” Comey said in a video on Substack.
First Amendment Hurdles
Legal experts are sharply divided over whether the case can survive constitutional scrutiny. The Supreme Court’s “true threats” doctrine, established in Watts v. U.S. (1969) and most recently refined in Counterman v. Colorado (2023), distinguishes punishable threats from protected political speech, jests, and hyperbole.
“If Comey is charged for the shell picture, it would face a monumental challenge under the First Amendment,” constitutional law expert Jonathan Turley told Fox News. “In my view, the image itself is clearly protected speech. Absent some other unknown facts or elements, it would be unlikely to survive a threshold constitutional challenge.”
UCLA law professor Eugene Volokh offered a similarly sharp assessment in an analysis for Reason.com: “I think this prosecution is unjustified, and will get thrown out. Nothing in Comey’s statement can be reasonably understood as conveying that he means to kill Trump. Rather, its reasonably understood meaning is that Comey wants Trump removed, for instance through impeachment or resignation.”
The Freedom Forum noted that prosecutors must prove Comey “consciously disregarded a substantial risk that his communications would be viewed as threatening violence” — a high bar established by the Supreme Court in 2023.
The Government’s Position
Acting Attorney General Todd Blanche has defended the prosecution forcefully. “You are not allowed to threaten the President of the United States of America. It’s not a very difficult line to look at,” Blanche said at a press conference announcing the indictment.
FBI Director Kash Patel also weighed in, saying: “James Comey disgracefully encouraged a threat on President Trump’s life and posted it on Instagram for the world to see. As the former Director of the FBI, he knew full well the attention and consequences of making such a post.”
Questions Over Prosecutor’s Departure
Petracca’s sudden departure has fueled speculation about internal concerns over the case’s viability. He was a recent hire by U.S. Attorney Boyle, who brought the case in the Eastern District of North Carolina where the seashell photo was taken. NBC News reported that Petracca had also stepped away from other criminal cases in the district.
This is the second time the Justice Department has prosecuted Comey during the second Trump administration. A 2025 case charging him with false statements and obstruction was dismissed after a federal judge ruled the prosecutor had been unlawfully appointed.
Double Standards Debate
The case has also sparked accusations of selective prosecution. Critics point to conservative figures who posted “86 46” during Joe Biden’s presidency without facing legal consequences, including commentator Jack Posobiec and former Rep. Matt Gaetz. Newsweek found no evidence that “8646” was adopted by official Republican Party fundraising operations, but the disparity has fueled debate over political double standards.
What’s Next
The case is heading toward an October 2026 trial after U.S. District Judge Louise Wood Flanagan granted Comey’s request for a delay. Comey’s attorney, Patrick Fitzgerald, has signaled plans to file a motion arguing vindictive and selective prosecution, while also challenging the indictment on First Amendment grounds.
With a new prosecutor stepping in and a major constitutional battle ahead, the case against James Comey faces an uncertain path — one that could ultimately test the boundaries of political speech in the digital age.