WASHINGTON — Former FBI Director James Comey urged a judge on Monday to throw out federal charges against him, arguing that a photo of seashells arranged on a beach he posted on social media was not a call to violence against President Donald Trump but protected political speech.
Comey's lawyers argue the government cannot prove the Instagram photo of seashells in the numerical arrangement of “86 47" constituted a “true threat" against the Republican president, who fired Comey in 2017 and has publicly called for his prosecution. The slogan — which has long meant to "get rid of" or “eject" — has been featured on thousands of items sold online and regularly displayed at protests, defense lawyers wrote in court papers.
"But the government now singles out Mr. Comey to prosecute one of the President’s most prominent critics for publishing another person’s statement of political opposition," his attorney's wrote. “That attempt to suppress core political speech contravenes both the statutes at issue and the First Amendment.”
The seashells case against Comey was the second in months targeting the ex-FBI director, a long-running Trump foe whom the president over the years has called a “corrupt piece of garbage” and other pejorative names.
An earlier case in Virginia accusing Comey of lying to Congress was dismissed last November after a judge concluded that the prosecutor who charged him and another Trump adversary, New York Attorney General Letitia James, was illegally appointed to the job.
More broadly, the case is part of a retribution campaign by the Trump administration Justice Department, which has initiated investigations across the country into individuals the president does not like. Comey has long drawn Trump's ire for his role overseeing the early months of an investigation into whether Trump’s 2016 campaign had coordinated with Russia to sway the outcome of that year’s election.
The two-count indictment charges Comey with “knowingly and willfully” making a threat to “take the life of, and to inflict bodily harm upon” Trump and with transmitting a threat in interstate commerce. It does not provide evidence that Comey knowingly threatened Trump, especially since Comey has said the opposite, but suggested a “reasonable recipient who is familiar with the circumstances would interpret” the message as a threat.
Comey was interviewed by the Secret Service last year over the post after Trump administration officials asserted that he was advocating the assassination of Trump, the 47th president. Comey deleted the post shortly after it was made, writing: "I didn't realize some folks associate those numbers with violence" and "I oppose violence of any kind so I took the post down."
“Even if ‘86 47’ could implausibly be read to suggest violence, a reasonable observer would still understand Mr. Comey’s post as mere political hyperbole, not a true threat,” Comey's lawyers wrote. “The Supreme Court has rejected threats prosecutions based on speech far more directly threatening than Mr. Comey’s seashells post here.”
The Justice Department has not elaborated on any evidence of intent the government has. But acting Attorney General Todd Blanche said earlier this year that prosecutors in every case prove intent with “witnesses, with documents, with the defendant himself to the extent it’s appropriate.”
“And that’s how we’ll prove intent in this case,” Blanche said in April, shortly after he was elevated to lead the department after Pam Bondi's firing.
Trump, in a Fox News Channel interview last year, accused Comey of knowing “exactly what that meant.”
“A child knows what that meant,” Trump said. “If you’re the FBI director and you don’t know what that meant, that meant assassination. And it says it loud and clear.”
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