PEN America criticizes prosecutors' use of Comey novel in threat case

Defense calls prosecution vindictive, says case punishes protected speech

PEN America has condemned federal prosecutors’ use of former FBI director James Comey’s novel “FDR Drive” in their case accusing him of threatening President Donald Trump. The free-expression organization’s legal director, Mara Gassmann, called the prosecution’s citation of the thriller “a desperate Hail Mary” in a statement released Friday, days after prosecutors cited the book in court documents.

“Citing a novel to save an indictment that is constitutionally dubious is a desperate Hail Mary and should be rejected,” Gassmann said, using a term for a last-second heave in American football.

Prosecutors with the Trump administration-led Justice Department filed documents Tuesday arguing that Comey sent coded messages to his followers suggesting they kill an enemy of his. To support that claim, they quoted passages from Comey’s novel “FDR Drive,” whose fictional protagonist is a federal prosecutor who tries to take down a far-right media personality named Sam Buchanan.

The filing cites a Publishers Weekly book review that described the novel’s protagonist as someone who “believes Buchanan went far beyond the protection of the first amendment” of the U.S. Constitution when the character “singled out his enemies by name and suggested ‘something should be done’ about them.”

The citation is part of the legal effort to sustain the prosecution of Comey on charges that he made a threat against the president and transmitted it across state lines through social media. The charges stem from an image Comey posted while vacationing in North Carolina in May 2025, five days before “FDR Drive” was published. The image featured seashells arranged to read “8647.”

In court documents filed Tuesday, prosecutors maintain there is “no serious dispute” that the post could be interpreted as a threat against Trump, who according to authorities has been the target of multiple assassination attempts. “86” is commonly used in restaurant service to mean to get rid of or remove something — an industry to which Comey once belonged — and Trump is the 47th U.S. president.

Comey, who has denied the charges, has said it “never occurred to me, but I oppose violence of any kind so I took the post down.” Trump’s feud with Comey — the FBI’s director for four years beginning in 2013 — dates back to his handling of an investigation into Russian interference during the 2016 election that led to Trump’s first presidency. That investigation found Russia interfered “in sweeping and systematic fashion,” but it did not establish that members of the Trump campaign conspired or coordinated with Moscow’s election interference activities.

In her statement, Gassmann said: “A political message, expressed through a photo of seashells, is no true threat; now, the government’s use of Comey’s work of fiction to support this prosecution compounds the first amendment concerns.” She added that “extreme caution should be taken any time creative works are used to support criminal charges to protect the free expression rights of us all.”

Comey’s lawyers are urging the judge to dismiss the case, arguing the Instagram post was protected speech and did not amount to a “true threat” against the president. “In this context, no reasonable observer would understand the phrase ‘86 47’ to connote violence at all – let alone to threaten that Mr Comey personally would commit violence against the president,” they wrote.

Comey’s attorneys say their client is being subjected to “vindictive and selective prosecution” and have said the indictment is “not based on a good faith application of the law to the facts.” “Instead,” they wrote, “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 government’s filing also claims Comey had an “apparent financial incentive to stir up controversy,” suggesting the seashell photo was shared to drive sales of his “eerily on-the-nose novel.” According to Circana BookScan figures cited in court documents, “FDR Drive” has sold 6,471 copies.