(NEW YORK) — Less than a month after former FBI Director James Comey’s indictment earlier this year, prosecutors sought the assistance of the notorious gangster Sammy “The Bull” Gravano to build their case against him, his defense lawyers alleged in a court filing on Tuesday.
A prosecutor and FBI agent allegedly interviewed Gravano to understand if Comey’s experience prosecuting the Gambino crime family in the 1990s would have led him to believe the term “86” was a reference to murder or violence.
A federal grand jury indicted Comey on two charges in April for posting a picture on his Instagram account of seashells spelling out “8647,” which federal prosecutors say constituted a threat against the president’s life.
Gravano — who confessed to his involvement in 19 murders, including those of his best friend and his brother-in-law, before cooperating with prosecutors — told the prosecutor and FBI agent that he did not interpret Comey’s “8647” seashells post to be a personal threat to President Donald Trump, according to defense lawyers.
“While Mr. Gravano claimed that all law enforcement agents would be familiar with the term’s alternative organized crime meaning referring to murder, he also claimed that a ‘gangster would never use that term’ because they knew that law enforcement knew what the term meant,” the filing said. “Mr. Gravano did not indicate that he understood the seashells post to be a threat by Mr. Comey to carry out violence personally.”
The new claims about the case against Comey were included in court filings on Tuesday as part of Comey’s push to throw out evidence seized from Apple and Google through search warrants. Comey’s lawyers say the evidence should be tossed because agents knowingly omitted details in their search warrant applications that would have “eviscerated” their case theory about the meaning of Comey’s “8647” post.
“The Fourth Amendment safeguards all Americans’ privacy against arbitrary government invasions. It does so by generally requiring the government to obtain a warrant from a magistrate before conducting a search,” Comey’s lawyers wrote. “Here, the government upended that constitutionally-mandated process by misleading the issuing magistrates about fundamental facts of the case.”
According to defense lawyers, federal agents “spent months poring over records of Mr. Comey’s government service and interviewing people who worked on organized-crime cases more than thirty years ago” to try to find evidence that Comey would have interpreted “86” to have a violent meaning. They searched the records in the case, an FBI database, trial transcripts, the FBI file from the Gambino case, and AI search engines with no success, before turning to Gravano, according to the court filing.
However, neither Gravano nor two retired FBI agents who spent decades working organized crime cases recalled the term “86” being used to reference murder. That conclusion would undermine a central element of the case against Comey — that he would have believed “86” connoted violence because of his years of work in federal law enforcement, defense lawyers say.
“As the former Director of the FBI, he knew full well the attention and consequences of making such a post,” FBI Director Kash Patel said in a statement announcing the indictment.
Defense attorneys seek to paint witness as unreliable
In the filing that detailed alleged conversations with “The Bull,” defense attorneys claim that prosecutors not only omitted details about the lack of evidence linking “86” to violence, but also relied on the testimony of an unreliable witness who told them that they hope Comey “goes to jail” for the “crimes that he committed” as FBI director.
Defense lawyers did not identify the witness or their connection to Comey, but claimed the individual reached out to Comey’s wife shortly after he posted the seashells photo to Instagram. According to defense lawyers, Comey removed the photo after the individual raised concerns the post could be a “call for violence.” Agents later cited that witness’s account in a search warrant affidavit to claim he “immediately perceived the term ’86’ 47′ as a call to get rid of, in a violent way, or even to assassinate President Trump,” according to the filing.
However, defense lawyers allege that prosecutors failed to include critical information about that witness’s credibility, including his estrangement from Comey, his own assessment of Comey’s mental state as “speculation” and “conjecture,” and experience in rehab after ending their career.
“Person-1 admitted that they had been estranged from Mr. Comey and had not spoken to him for at least two years; Person-1 also made clear their intense bias against Mr. Comey, stating that they hoped Mr. Comey ‘goes to jail. for the ‘crimes that he committed’ as FBI Director,” defense lawyers wrote. “Although Person-1 indicated that they had left a prior career and entered ‘rehab,’ there were no follow-up questions about what issues led to the need to enter rehabilitation or whether those issues had been resolved.”
According to defense lawyers, the individual originally interpreted “86” through it’s “food service meaning,” but later believed the term “86” was associated with violence after listening to an episode of Rudy Giuliani’s podcast.
“Mr. Giuliani claimed that Mr. Comey had worked on organized crime cases in which mafia members used the term ’86’ to mean ‘kill,’ as reflected in tapes and transcripts,” the filing said. “Thus, in Person-1’s view, ‘there was no way [Mr. Comey] didn’t know how that was at least going to be interpreted.'”
Defense seeks case’s dismissal in separate filing
Comey’s lawyers in a separate motion filed late on Tuesday sought to use the statements of Trump and his allies to have the case against the former FBI director thrown out.
Comey’s defense lawyers argued that Trump’s repeated calls for Comey’s prosecution and criticism of his public statement “leave no doubt as to his genuine animus” and demonstrate that the case against him for allegedly threatening to kill Trump by posting photos of seashells on a beach is vindictive.
“The ensuing indictment is not based on a good faith application of the law to the facts; instead, it 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,” Comey’s lawyers wrote.
Comey’s lawyers also pointed to allegedly violent statements about government officials made by Trump’s allies to argue that the Department of Justice is not evenly applying the law to prosecute similarly threatening statements.
“Several public figures have recently made statements about government officials that were comparable to, or far more violent than, Mr. Comey’s statement here. None was charged,” his lawyers wrote.
The motion follows a similar effort by Comey’s legal team to have his case tossed before trial on the basis that the Justice Department’s indictment fails to prove Comey’s post wasn’t within his First Amendment rights — while noting that immediately after he was notified the post was creating controversy, he deleted it and clarified it as non-threatening.
Regarding the specific “8647” phrase at the center of the government’s case, Comey’s lawyers noted that Amazon has listed 209,052 items that display the numbers “8645,” “8646,” or “8647,” and none of those items have led to similar prosecutions. Comey’s attorneys say that following his Instagram post of the seashells, the FBI “instituted a new policy, effective immediately, to treat the phrase ‘8647’ as coded language for threatening the President.”
“Mr. Comey’s prosecution appears to be the first indictment solely for publishing ’86’ in connection with a public official,” the motion said.
The filing includes dozens of pages of Trump’s own public statements dating back to 2016 of what Comey’s attorneys allege is an unrelenting campaign of harassment to target one of the former top law enforcement officials in the country.
“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,” the filing said.
Defense lawyers also say former Attorney General Pam Bondi was fired in part because of her failure to prosecute Trump’s political opponents. They argued that the new case against Comey was an “audition” for Acting Attorney General Todd Blanche.
“Here, the inference is clear: the newly installed political officials in the DOJ strove to accomplish what their predecessors could not, namely, effectuating the President’s desire to punish Mr. Comey,” they wrote.
Trump, in announcing Bondi’s departure, lauded her as “a Great American Patriot and a loyal friend, who faithfully served as my Attorney General over the past year.”
In addition to their motion to dismiss for vindictive and selective prosecution, Comey’s lawyers also requested that prosecutors turn over the transcripts and recordings of grand jury proceedings in the case. They argued that “the government may have misstated key factual and legal issues to the grand jury” and mentioned the issues that came up in the other, now-dismissed case against Comey in Virginia. In that case. prosecutors acknowledged that the entire grand jury did not see the final indictment in the case.
“The record in this case raises a significant risk that irregularities in the grand jury process influenced the grand jury to return an indictment,” the motion said.
The Department of Justice has defended its work prosecuting Comey, arguing they are treating the case no differently than any other threat to a public official. The White House has also denied that Trump is using the Department of Justice to target his political adversaries, though Trump has repeatedly called for Comey to be prosecuted.
“Our office regularly pursues threat cases including those against public officials. The Grand Jury examined the evidence in this case and found probable cause to indict Mr. Comey. We will continue to pursue the case as we regularly do every day to protect the people of this District and the United States,” U.S. Attorney Ellis Boyle said when announcing the indictment in April.
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