The FBI just botched DOJ’s entire case against James Comey: legal expert

James Comey Director Federal Bureau of Investigation discusses the impact of technology on the work of law enforcement. Image via Brookings Institution/Flickr.

The FBI may have just botched the Justice Department's case against former FBI Director James Comey, a long-time legal expert wrote on Wednesday.

The DOJ's case hinges on the claim that Comey knew the term "86" means to assassinate someone. So, when he posted the photo to his Instagram of seashells on a beach reading "86-47," he was promoting violence against the president. Comey later released a video making it clear that his only exposure to the term "86" was in the restaurant industry, such as to cancel an order, clear plates or kick someone out.

According to Lawfare's Roger Parloff, the FBI scoured the world of cases for proof that gangsters used “86” to mean “kill." The extent to which the agents searched in an effort to find evidence was extensive. Parloff collected the details into a timeline of activities showing just how little they were able to uncover.

"So early on, those who saw — or were ordered to see — what Comey did in a criminal light developed a theory," said Parloff. "The theory was that '86' was a widely known term within organized crime syndicates meaning 'to kill,' and that anyone who had spent a lifetime in law enforcement, as Comey had, would have known that."

The DOJ tried to tie it to a 1993 case on which Comey was the lead prosecutor at the time. They were able to find two former FBI agents who worked on the case, as well as mobster Salvatore “Sammy the Bull” Gravano, who were willing to claim that "86" means "to kill." Still, they haven't been able to prove that Comey thought that's what it meant.

What Parloff found is that amid Comey's declarations submitted to court in July, EDNY prosecutor John Gleeson, who was responsible for 13 Mafia cases, said that not once in his career has he heard "86" used to mean "kill... in any way, shape or form."

Yet, Parloff wrote, the "seashell case" continues.

"This is the sad account of a shameful and vindictive prosecution, in which high-level Justice Department officials are plowing ahead against all credible evidence to punish an enemy of the president. It doesn’t get worse than this," Parloff complained.

Last week, one of the prosecution's top witnesses was revealed. The evidence consisted of a text message conversation between Person-1 and Comey's wife, Patrice, in which the person accused the Comeys of having "Trump Derangement Syndrome" and trying to stir up violence against the president.

Parloff noted that the text message was only part of a much longer conversation with the person that wasn't circulated among the far-right pundits and Trump establishment speaking out on the case. While the FBI summary claimed that Person-1 believed "86" was violent, the affidavit of Comey's attorney, Patrick Fitzgerald, shows more.

"My first initial thought was personally, I thought that the only way that I really heard '86' in my life before is when I used to work in restaurants in college and it's like ... out of something on the menu, you know, 86 or not the menu whatever," said Person-1. The audio interview by the FBI and Person-1 remains sealed.

The lawyers go on to say that Person-1 only concluded it was a violent threat after they heard Rudy Giuliani go on his podcast and declare it meant kill. Giuliani said that Comey even worked on a mob case in which "86" was used as synonymous with "to kill."

In a different interview with Giuliani that same day, the ex-mayor also admitted he didn't understand the term "86" meant kill until he was "educated" on the meaning by "his boys." Giuliani was made famous in the 1980s for prosecuting mobsters.

When the North Carolina prosecutor began working on the case, he asked agents to find examples of the "86" usage. After five days of searches, they were unable to "unearth a single pertinent reference," wrote Parloff.

Attorney General Pam Bondi was then fired, and deputy Todd Blanche, Trump's former personal attorney, took over the office. The Comey indictment was announced.

It was only after the FBI began reaching out to ex-mobsters that John Gleeson got involved, reaching out to Comey through his daughter, who works for a New York law firm. He made it clear he hadn't seen or spoken to Comey since the early 1990s, and the two were once "rivals in a way" when working for their prosecution offices in New York.

Gleeson ultimately became a judge, presiding over more mob cases. He said in his affidavit he'd listened to many hours of tapes from tapped lines and likely spent more than 500 hours debriefing cooperating witnesses. At no time has he ever heard someone use the term. In his experience, if they wanted someone killed, they'd use the term "whack" and, on occasion, "clip."

Gleeson called the idea that the DOJ was going forward with the case "laughable."

Parloff said that in a normal case, if a prosecutor saw the Gleeson declaration, they would drop the charges, at least if they had "good judgment and good will."

He closed by wondering if the DOJ truly believes they can win at trial using an ex-gangster as their star witness compared to mob crime experts, former prosecutors, judges and FBI agents.

"At such a trial, there could be no hope of a conviction. And if a conviction somehow came to pass, it would be a manifest miscarriage of justice," said Parloff. "Prosecutors need to end this horrendous abuse of the criminal justice system."

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