James Comey's legal team is asking a federal judge to throw out a bizarre prosecution that hinges on a photograph of seashells arranged in a specific pattern, arguing the case tramples on free speech rights and represents nothing more than political revenge.
The former FBI director was indicted in North Carolina in April after prosecutors claimed a seashell image he posted to Instagram constituted a threat against President Donald Trump. The shells were arranged to form the numbers "86 47." The government's theory: "86" is restaurant slang for "out of stock," and Trump is the 47th president, therefore the post was a veiled death threat.
In a court filing Monday, eight attorneys representing Comey submitted a demolition job on the prosecution, contending that "dictionaries, context, precedent, and common sense" all make the charges untenable. They argued no reasonable person reading the post would interpret it as a suggestion of violence, and even if someone could stretch the interpretation that far, it would still qualify as protected political speech.
"Forcing Mr. Comey to stand trial for a statement opposing the President, even if he is ultimately acquitted, would itself be an unconstitutional punishment of free speech," the legal team wrote.
The prosecution was initially shepherded by Matthew Petracca, a rookie federal prosecutor and former Republican official who has since stepped away from the case. A federal judge in Washington has already issued a similar skepticism, calling it "difficult to fathom" how a flag displaying those same numbers would constitute a true threat when protesters displayed it on National Park Service land.
Comey's team is also preparing a separate motion arguing the entire prosecution reflects selective and vindictive prosecution tactics. The Justice Department has until mid-August to respond.
The attorneys made a pointed comparison to rhetoric from Trump himself. They highlighted comments where Trump said a video by Members of Congress was "punishable by death," referenced "Second Amendment people" potentially stopping Hillary Clinton in 2016, and described shooting Liz Cheney, saying "let's see how she feels about it when the guns are trained on her face."
Comey himself has characterized the seashells case as emblematic of Trump's "bottomless desire" for revenge. Last year, a separate prosecution brought against the former FBI director by a Trump ally also collapsed when a federal judge ruled the prosecutor had been unlawfully appointed.
If the seashells case survives the legal challenges, trial is scheduled for October.
Author Sarah Mitchell: "This prosecution is so threadbare on the merits that the real question isn't whether it survives, but what it says about using the Justice Department as a weapon."
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