Former Federal Bureau of Investigation director James Comey urged a judge on Monday to throw out federal charges against him, arguing that a photo of seashells arranged on a beach he posted on social media was not a call to violence against US President Donald Trump but protected political speech.
Comey’s lawyers argue the government cannot prove the Instagram photo of seashells in the numerical arrangement of “86 47” constituted a “true threat” against the Republican president, who fired Comey in 2017 and has publicly called for his prosecution.
The slogan – which has long meant to “get rid of” or “eject” – has been featured on thousands of items sold online and regularly displayed at protests, defence lawyers wrote.
“But the government now singles out Mr Comey to prosecute one of the President’s most prominent critics for publishing another person’s statement of political opposition over a social media photo of seashells arranged on a beach,” his lawyers wrote.
“That attempt to suppress core political speech contravenes both the statutes at issue and the First Amendment.”
The seashells case against Comey was the second in months targeting the ex-FBI director, a long-running Trump foe whom the president over the years has called a “corrupt piece of garbage” and other pejorative names.
An earlier case in Virginia accusing Comey of lying to Congress was dismissed last November after a judge concluded that the prosecutor who charged him and another Trump adversary, New York Attorney General Letitia James, was illegally appointed to the job.