WASHINGTON — Federal officials involved in the prosecution of James Comey misled judges, submitted documents containing false statements and withheld key facts during the course of the investigation, according to new defense filings that seek the dismissal of a case charging the former FBI director with threatening President Donald Trump on social media.
Lawyers for Comey made the allegations of misconduct in motions filed late Tuesday that also call the case a vindictive and selective prosecution, demand access to transcripts of grand jury proceedings to expose what they say are “irregularities” in how the indictment was secured, and describe “unlawful” surveillance of Comey by the Secret Service.
Taken together, the new motions, along with an earlier one this week that called Comey’s social media post protected speech rather than a threat, represent a multipronged defense effort to dismantle a case that defense lawyers say exemplifies a Trump administration retribution campaign targeting one of the president’s vocal critics.
“Ample objective evidence – much of which comes directly from government officials’ own public statements and admissions – establishes that the President’s animus toward Mr. Comey led to this vindictive and selective prosecution,” Comey’s lawyers wrote in one of the filings.
The case centers on a picture of seashells on the beach
Comey was charged in April with threatening Trump through a photo he posted on Instagram a year earlier depicting seashells he said he found on the beach in North Carolina in the numerical arrangement of “86 47.”
The Justice Department has said the photo constituted a threat against Trump, the 47th president. Comey deleted the post shortly after he put it up, saying he did not know that anyone interpreted the numbers as a call to violence. His lawyers have said that the slogan has long meant to “get rid of” or “eject” and has been featured on thousands of items sold online and regularly displayed at protests.
Defense lawyers say investigators who tried to prove that Comey intended a physical threat, or knew that the number “86” suggested violence, repeatedly came up empty but withheld that from federal magistrates as they applied for warrants to search the digital accounts associated with Comey and his wife.
For instance, the FBI searched an internal database of information about open and closed investigations for any indication of an association between Comey and the term “86” but found inconclusive results. An FBI agent also requested a review of the FBI file for the case against reputed mobster John Gambino, which Comey worked on as a young prosecutor, but found no references to the term “86.” Investigators also interviewed a key government cooperator in the case, Salvatore Gravano, who said he did not recall ever discussing the term “86” with Comey or hearing it in connection with the trial.
Defense lawyers say the search warrant affidavits were marred by “false statements,” including what they say were incorrect insinuations that one of Comey’s attorneys had sought to hide evidence or that his wife had misled investigators.
“Evidence obtained during discovery supports at least a substantial preliminary showing that the affidavits submitted in support of two of the search warrants contained intentionally false statements and material omissions, and that those defects vitiate any conceivable showing of probable cause,” Comey’s lawyers wrote.
Defense lawyers say the case is rooted in Trump’s personal animus
In addition, defense lawyers say the warrant applications distort statements made to investigators by a person who knew Comey but has now been estranged from him for years.
The person, whose name is not disclosed in court documents, is described in an affidavit as saying that they immediately perceived Comey’s post to have a violent meaning. But investigators omitted that the person said their initial impression was that “86” referred to being “out of something on the menu” and only later concluded that it could be understood as a call to violence.
The person said that view was influenced by having listened to an episode of Rudy Giuliani’s online show in which the Trump loyalist claimed that Comey had worked on mob cases as a prosecutor in which mafia members used “86” to mean “kill.” But the FBI’s own investigation determined Giuliani’s claims to be untrue, defense lawyers said.
The case against Comey over the seashells was the second in recent months targeting the ex-FBI director, a long-running Trump foe whom the president has, over the years, said deserves to be prosecuted.
An earlier case in Virginia accusing Comey of lying to Congress was dismissed in November after a judge concluded that the prosecutor who charged him and another Trump adversary, New York Attorney General Letitia James, had been illegally appointed.
Comey’s lawyers describe the prosecutions as rooted in Trump’s own personal animus. The Secret Service closely coordinated with the Justice Department and with Trump himself about Comey’s interview, according to Comey’s lawyers, who also say the president was sent frequent updates on Air Force One and had asked to be briefed.
As Comey returned to Washington with his wife to be interviewed by law enforcement about his post, Secret Service agents were directed to conduct “unlawful” electronic surveillance, “including as they stopped to visit the grave of their deceased son,” his lawyers said. The surveillance had been requested by a senior Justice Department official.
Comey was the FBI director when Trump took office in 2017, having been appointed by then-President Barack Obama and previously serving as a senior Justice Department official in President George W. Bush’s administration. Trump fired Comey in May 2017 as the FBI was investigating potential ties between Russia and Trump’s presidential campaign. The men have been openly at odds ever since.
The Justice Department will have an opportunity to respond to the defense filings. It has not elaborated on any evidence of intent the government has. But acting Attorney General Todd Blanche said earlier this year that prosecutors in every case prove intent with “witnesses, with documents, with the defendant himself to the extent it’s appropriate.”
“And that’s how we’ll prove intent in this case,” Blanche said in April, shortly after he was elevated to lead the department after Pam Bondi’s ouster.
