James Comey Argues There's a Gaping Hole in Trump's Revenge Case

Dia Dipasupil/Getty Images Donald Trump’s Justice Department has conflated two completely separate areas of the law in its revenge case against James Comey , the former FBI director argued in a new filing .

Comey was indicted in April on two counts of making threats against the president’s life after he took a picture of seashells arranged on the beach to spell out “86 47” and posted the photo to Instagram with the caption, “Cool shell formation on my beach walk.” The number 86 is sometimes used as slang for tossing something out or getting rid of it—especially in the context of restaurant kitchens—but the government accused Comey of calling for Trump, who is the 47th president, to be killed.

In their latest filing asking the court to throw out the case for lack of a true threat, attorneys for Comey, 65, argued that reasonable people would have interpreted the photo as a political statement, not a call for violence against the 80-year-old president.

But even if someone did interpret “8647” as a call for violence, there’s nothing to indicate that Comey was declaring his intent to kill the president himself, the filing argued.

That’s important because personally threatening to commit violence is a separate, distinct crime from inciting others to commit violence, it continued.

The indictment only charges the crime of a threat, which the Supreme Court has defined as a “serious expression conveying that a speaker means to commit an act of unlawful violence.” “A call for others to commit violence can only be incitement—which the indictment does not charge,” the filing argued.

“The government’s attempt to prosecute an incitement case through a threats indictment violates settled law.” Incitement has been narrowly defined by the Supreme Court as speech that is directed to inciting or producing imminent lawless action, and that is likely to incite or produce such action.

The filing acknowledged that at least one federal appeals court has found that exhorting others to violence could count as a “true threat” if the people ordered to take violent action are “subject to the will” of the speaker.

But no reasonable person would think Comey’s Instagram users were “subject to his will,” the filing argued.

Instead, the government is attempting to “blur the distinction between threats and incitement,” and the case should be thrown out, it continued.

The Daily Beast has approached the Department of Justice for comment.

Comey’s lawyers previously argued their client was a victim of “prosecutorial vindictiveness” after the DOJ spent more than six months trying to make criminal charges against him stick.