Comey asks judge to ‘86’ seashells case, alleges he was surveilled at Trump’s direction
Former FBI Director James Comey asked a federal judge Tuesday to dismiss the “sea shells” case — alleging vindictive and selective prosecution — and claimed that President Donald Trump compelled the U.S. Secret Service to surveil him after he posted on social media a photo of sea shells on the beach.
In the motion to dismiss his case, filed late Tuesday, Comey’s lawyers argued that the seashells case “is not based on a good-faith application of the law to the facts” but instead “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 indictment was the second brought against Comey in the last 12 months.
The latest filing further alleged that the U.S. Secret Service “knowingly conducted illegal electronic surveillance of Mr. Comey at the request of a high-level official.”
The motion to dismiss the case for selective and vindictive prosecution was accompanied by multiple other pretrial motions, including requests to unseal grand jury audio recordings due to alleged irregularities in the prosecutors’ presentation of the case and to suppress certain evidence on the grounds that it was obtained through intentional misrepresentations and omissions.
A federal grand jury in North Carolina indicted Comey in April after he posted a photo of sea shells arranged to spell “86 47” on his social media account. The phrase “86” is a widely used term among restaurant workers that generally means to get rid of or refuse something, such as an unwanted customer or unavailable menu item. Prosecutors allege the phrase constituted a threat against Trump, the 47th president, and charged Comey with “knowingly and willfully” threatening the president.
Lawyers for Comey have undercut that claim in new filings, arguing there was no true threat against the president.
“That claim is contradicted by every possible source of meaning: dictionaries, context, precedent, and common sense,” they wrote in the filing. “Most dictionaries don’t even list the meaning — ‘to kill’— that the government now proposes.”
Comey also submitted a declaration from famed mafia prosecutor and former federal judge John Gleeson, who attests that in his experience in handling organized crime cases, “86” in no way means murder.
U.S. Supreme Court precedent classifies a true threat as a “serious expression” that conveys the speaker himself intends to “commit an act of unlawful violence.”
Comey also deleted the post within hours, writing in a separate post that he “didn’t realize some folks associate those numbers with violence.”
The slogan “86 47” has become an increasingly popular rallying cry to express opposition to Trump. In arguing that Comey has been selectively prosecuted, his lawyers highlighted that “the phrase is emblazoned on countless products sold” online and the slogan is commonly displayed at protests nationwide.
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Lisa Rubin is MS NOW’s senior legal reporter and a former litigator.
