Attorneys for former FBI Director James Comey argued that federal prosecutors charged him under the wrong law, dooming their case.
In a Tuesday court filing, Comey's attorneys contended that the Trump administration's case against him cannot survive its own legal theory. The Department of Justice is accusing Comey of threatening President Donald Trump after he posted a photo showing seashells arranged to read "86 47."
According to the Trump administration, an "objective viewer" could read the post to mean "Kill President Donald Trump," the court filing noted. Comey's lawyers argue the charge fails even if that reading were correct.
"On the actual question before the Court, the government has little to offer," Comey's lawyers wrote. "A call for others to commit violence can only be incitement—which the indictment does not charge."
The defense accuses prosecutors of trying to run one kind of case through the wrong kind of charge. "The government's attempt to prosecute an incitement case through a threats indictment violates settled law," Comey's lawyers wrote. "The indictment must be dismissed."
Comey's lawyers added that prosecuting him under the wrong law would unconstitutionally "broaden the possible bases for conviction beyond those included in the indictment."
The defense leans on Fourth Circuit precedent, including United States v. White, in which the court held that posts "'to the public generally'" calling on others to kill an activist amounted to "'political hyperbole,'" not a true threat.
Comey's lawyers also attacked the DOJ's evidence that "86" means "to kill." Prosecutors rely on "a 2005 edition of Cassell's Dictionary of Slang" and a 1991 New York Times article that itself had to clarify that the term was "military jargon for killed in action." The need to define it shows "the ordinary meaning of '86' is not 'to kill,'" Comey's lawyers wrote, contending that "86 47" is "a statement of nonviolent political opposition."
