Attorneys for former FBI director James Comey accused Justice Department officials of misleading judges, omitting key facts and making false statements in their case charging him with threatening to kill President Donald Trump via a social media post.
In three court filings late Tuesday, Comey’s lawyers also argued the Justice Department had improperly singled out Comey for prosecution because Trump was upset that Comey had publicly criticized him.
The motions – hundreds of pages in all – attacked a central theory in the government’s case and sought to suppress some evidence, allow Comey’s attorneys to review grand jury transcripts and dismiss the indictment as a vindictive and selective prosecution.
The indictment “is not based on a good faith application of the law to the facts,” Comey’s lawyers wrote in one of the motions. “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.”
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The filings are the second this week from Comey’s legal team and represent a sweeping attempt to cut short a case that Trump’s critics say is emblematic of the president’s retribution agenda. In a separate motion on Monday, Comey asked the judge overseeing the case to throw out the charges, arguing his post did not constitute a true threat.
A White House spokesperson referred questions about the case to the Justice Department, which doesn’t typically discuss pending cases. A Justice Department spokesperson didn’t immediately respond to a request for comment Wednesday.
Comey’s lawyers zeroed in on the extensive efforts federal investigators made over nearly a year to turn up evidence that Comey intended to threaten Trump’s life when he uploaded a photo to Instagram of seashells spelling “86 47.”
Echoing claims from Trump’s allies that the slogan was a call to violence, prosecutors alleged that “86” had roots in organized crime as jargon for “kill” and that Comey would have known this from his time investigating and prosecuting mobsters. They say the “47” represents Trump as the 47th president.
But Comey’s lawyers said investigators found no such connection, despite spending months combing through case files and organized-crime trial transcripts and interviewing experts to substantiate the theory.
“Those efforts, which preceded the government’s applications for the warrants, failed to find any evidence proving that Mr. Comey learned that ‘86’ means ‘kill’ in the organized crime context — because it does not,” the lawyers wrote.
The FBI case agent who applied for the warrants, which sought records from Apple ID and Gmail accounts associated with Comey and his wife, Patrice Comey, made no mention of investigators’ failed searches, despite having personally ordered it, according to the filings.
The omission, Comey’s lawyers said, “is all the more egregious because all of those investigations supported Mr. Comey’s assertion that he did not recall ever hearing ‘86’ used to mean ‘kill’ during his prosecutorial days.”
Comey’s filings include a blistering sworn statement from John Gleeson, a former federal prosecutor and judge in Brooklyn who tried crime boss John Gotti. He said he’d never heard a mafia member use the term “86,” nor had it come up in reference to killing in his thousands of hours of conversations with mafia witnesses.
“The claim that ‘86’ is mafia jargon for ‘kill’ is preposterous,” Gleeson wrote. “In my expert opinion, there is literally no support for the central allegation on which the case rests.”
Comey’s lawyers also said the Justice Department had “distorted” statements from an unidentified associate of the Comeys who spoke with Secret Service and FBI agents. The affidavits claimed that the person “immediately” thought “86” could have been a call to violence, when in fact the person told investigators that they initially viewed the term as benign restaurant lingo, according to the lawyers.
The person had no insight into Comey’s mental state, having not spoken to him in two years, and had been exposed to a false claim that “86” had been used to indicate violence in cases Comey had prosecuted, according to the filings. And the person had told investigators that they hoped Comey “goes to jail” and described their views about Comey as “speculation,” his lawyers said.
“These inconvenient facts — all disproving the government’s central theory, and all known to the agent who sought the warrants — appeared nowhere in the affidavits seeking to obtain the private digital records of Mr. Comey and his wife,” his lawyers wrote.
The lawyers also targeted what they said was a false implication in one of the warrants that one of Comey’s lawyers had obstructed the investigation.
The lawyer, a former federal prosecutor, had sent a screenshot of the seashell photo to a Secret Service agent who informally requested it, according to the filing. The FBI’s search warrant affidavit suggested that the lawyer had tried to conceal evidence in doing so, even though the agent had never asked for the original file.
Comey’s lawyers are seeking what’s known as a Franks hearing, in which a judge determines whether investigators lied or left out important facts to secure a search warrant.
In a separate motion, his lawyers asked the court to force the government to turn over grand jury transcripts and audio recordings. They said the government’s alleged omissions and false statements raised “a significant risk that irregularities in the grand jury process influenced the grand jury to return an indictment.”
Comey’s lawyers also argued that the case should be thrown out because the Justice Department’s prosecution was “vindictive,” “selective,” and designed to retaliate against Comey for publicly criticizing the president.
Vindictive prosecution is a legal doctrine in which a prosecutor improperly charges a person in retaliation for exercising legal rights such as free speech. Selective prosecution occurs when a prosecutor targets a person with charges that haven’t been brought against people who did the same thing in similar situations.
Both practices are unconstitutional and represent serious prosecutorial misconduct, but they are difficult to prove in court. Federal judges have recognized broad discretion in how prosecutors bring cases, and defendants who raise vindictive or selective prosecution claims rarely prevail.
This is Comey’s second indictment by Trump’s Justice Department. Under heavy pressure from Trump, prosecutors in Virginia charged Comey last fall with lying to Congress. That case stemmed from his 2020 congressional testimony about alleged leaks to journalists related to FBI investigations of Trump and Hillary Clinton’s 2016 presidential campaigns.
Comey had argued vindictive and selective prosecution in that case, but a judge dismissed the case on the grounds that the lead prosecutor, White House appointee Lindsey Halligan, had no authority to bring the charges.
Frustrated by the failed indictment and the pace of other prosecutions of high-profile figures, Trump in April fired then-attorney general Pam Bondi and allowed her deputy, Todd Blanche, to assume the role on an acting basis.
Under Blanche, who served as Trump’s criminal lawyer between presidencies, the Justice Department indicted Comey again in North Carolina, this time on counts of threats against the president and making threats across state lines. Several weeks after the new indictment was filed, Trump nominated Blanche to be attorney general.
When Comey posted the “86 47” image last year, many of Trump’s allies claimed it was a call for the president’s murder. Comey denied he had any violent intent, saying the message was political, and quickly deleted the post. Secret Service agents interviewed him in Washington shortly after.
Comey’s lawyers said in their filing Monday that “86 47” has become a well known and widely used political slogan expressing opposition to Trump with no significant violent connotations.
The government’s claim of a “true threat,” they wrote, “is contradicted by every possible source of meaning: dictionaries, context, precedent, and common sense.”
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