The Justice Department argued this week that former FBI director James B. Comey intentionally threatened the life of President Donald Trump in a social media post in part to stir controversy and boost sales of his then-forthcoming novel.
Prosecutors laid out parts of their controversial case in motions late Tuesday against Comey, whom they charged in April with threatening the president by posting a photo on social media of seashells arranged to spell out “86 47.”
Trump is the 47th president, while “86” can mean banning or removing someone, and sometimes can also be slang for killing them. Comey, a longtime outspoken foe of the president, quickly removed the post after receiving criticism that the phrase could be used to communicate a threat of violence.
The latest prosecution motions were filed in response to arguments made last month by Comey’s defense attorneys that a federal judge should dismiss the case because the seashell photo did not constitute a true threat, and because the case amounted to an unlawful vindictive prosecution based on Trump’s personal hostility toward the former FBI director.
Prosecutors responded Tuesday that regardless of Trump’s feelings toward Comey, there is no evidence that those who actually filed the charges — prosecutors in the Eastern District of North Carolina (EDNC) — were acting vindictively. They said the prosecutor who brought the case did not face pressure to indict Comey and did not discuss the case with Attorney General Todd Blanche until the day before the grand jury proceedings.
“Comey’s motion falters from the start because he does not even attempt to make the required showing,” the motion from prosecutors states. “He does not meaningfully suggest — much less provide evidence — that any EDNC prosecutor acted with animus at all.”
Legal experts and Democratic lawmakers have sharply criticized the case against Comey as built on flimsy evidence. Given the high legal threshold to charge someone with a threat based on their speech, it would be tough for the Justice Department to win a conviction based on a photo of seashells, they contend.
Comey has said he stumbled on the shell formation during a walk along the beach and did not arrange the shells himself. He has also said he did not know that those numbers could be construed as a violent threat and that he removed the photo as soon as he was informed of that.
The crux of the government’s argument Tuesday was that Comey posted the picture against the backdrop of a heightened threat environment, including recent assassination attempts against Trump. The prosecutors said that “there is no serious dispute” about whether someone would view Comey’s post as a threat.
The prosecutors also attempted to show how common the numbers “86″ are in modern parlance, citing Merriam-Webster and Wikipedia entries defining the term. Comey’s defense lawyers have argued that numerous people have posted “86 47″ messages without being prosecuted, because the term usually means to remove someone.
The prosecutors also said that Comey posted the photo just as he was about to publish a novel about a far-right media personality whose words inspire his followers to commit violence against their political enemies.
The motions argued that this background is critical as the judge decides whether the case can move forward.
“Such context includes, but is not limited to, the heightened threat environment, the backdrop of Comey’s eerily on-the-nose novel, the different common usages of the phrase “86 47,” the phrase’s use as a term of art in the context of organized crime, Comey’s professional experience with such crime, the reactions of persons who viewed the post, the reactions of law enforcement officers including the FBI and Secret Service, and Comey’s apparent financial incentive to stir up controversy,” the prosecutors wrote.
Comey was charged by a federal grand jury in April with one count of making threats against the president and another count of transmitting a threat across state lines.
Prosecutors investigated the seashell case for a year before they indicted Comey. During that time, Trump repeatedly called for Comey’s prosecution.
The pressure intensified after a previous Justice Department effort to prosecute Comey, on allegations he lied Congress, was thrown out by a federal judge who concluded the U.S. attorney overseeing the case had been illegally appointed.
In Comey’s motion last month claiming a vindictive prosecution, his lawyers argued that Trump’s repeated insults against Comey and calls for his prosecution are the sole reason the Justice Department filed charges.
“The President translated that malice into action by prodding the DOJ to prosecute Mr. Comey — particularly in the public social-media post claiming that Mr. Comey is ‘guilty as hell’ of some unspecified crime and instructing then-Attorney General Bondi to seek “JUSTICE” against him without ‘delay,’” they wrote.
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