The former FBI director’s latest filings push the fight beyond a cryptic Instagram image and into how investigators pursued the case. A judge now has to weigh speech, warrants and claims of selective prosecution.
James Comey alleges prosecutorial misconduct in a new bid to throw out the federal criminal case against him. James Comey asks a judge to dismiss the case known as the seashells case, challenging how the Department of Justice and investigators built charges tied to an Instagram photo of seashells arranged as 86 47.
The filing puts the court, and U.S. District Judge Louise W. Flanagan, in the middle of a fight over political speech, surveillance and alleged government overreach. Comey’s team says the prosecution is retaliatory; the Justice Department has denied he is being singled out for his political views.
The motion widens the case
Comey, the former FBI director and longtime public critic of President Donald Trump, is asking for more than a routine dismissal. According to CBS News, his lawyers filed new motions late Tuesday seeking to toss the charges, suppress evidence from search warrants, and force disclosure of grand jury materials.
The case centers on a spring 2025 Instagram post showing seashells arranged to form 86 47. Prosecutors have treated the post as part of a criminal threat case involving Trump. Comey’s lawyers argue the phrase was protected speech and not a true threat.
The new filings broaden that argument. Instead of focusing only on what the seashell image meant, Comey’s defense is attacking the prosecution’s motives and methods. That is a more aggressive play: if a judge credits the misconduct claims, the case could be weakened before a trial ever tests the evidence.
The allegations are also unusually charged because of who is involved. Comey once led the FBI, later became a central antagonist in Trump’s political narrative, and has been publicly criticized by the president for years.
Why the seashells matter
The phrase 86 47 sits at the center of the dispute because it can be read in more than one way. In restaurant slang, 86 can mean an item is unavailable or removed. In other contexts, it can carry a darker meaning, including to kill or eliminate. 47 refers to Trump as the 47th president.
Comey’s lawyers say the government stretched an ambiguous social media post into a federal criminal case. CBS News reported that the defense pointed to witness statements and investigative records suggesting uncertainty inside the government about the meaning of the phrase.
One witness cited in the filings initially viewed the post as restaurant slang, according to the defense account reported by CBS News, before later reconsidering after listening to Rudy Giuliani’s podcast. Comey’s lawyers also said searches of FBI files for prior references to 86 produced inconclusive results.
That matters because threat cases often turn on context. Courts do not look only at the words used; they consider intent, surrounding circumstances and whether a statement qualifies as a true threat outside First Amendment protection.
Misconduct claims target warrants
Comey’s latest filings allege that investigators crossed legal lines while pursuing the case. His lawyers accused the U.S. Secret Service of conducting illegal electronic surveillance of Comey at the request of a high-level DOJ official, according to CBS News.
The defense cited internal messages about pinging Comey’s phone to determine its location after the Instagram post. One unnamed Secret Service official, quoted in the filing and reported by CBS News, said personnel did not believe anyone’s life was in immediate danger and that it was legally a bad idea to ping the phone.
Comey’s team also wants a Franks hearing. That is a proceeding where a judge considers whether officials misled a magistrate or omitted key facts when applying for search warrants.
Here, the defense says warrant applications involving Comey’s digital accounts and his wife’s accounts contained material falsehoods or omissions. The government has not had its full courtroom response tested in the reporting provided, and allegations in a defense filing are not findings of fact.
The DOJ denies political targeting
The most politically explosive claim is that Comey was prosecuted because of Trump’s hostility toward him and because of Comey’s own protected speech. CBS News reported that Comey’s lawyers described the indictment as part of a yearslong effort to punish him for criticizing the president.
The defense filing reportedly included a lengthy spreadsheet cataloging insults and public attacks exchanged between Trump and Comey over nine years. That detail is meant to support a selective or vindictive prosecution argument: the claim that the government used criminal law against someone for an improper reason.
The Justice Department has denied that Comey is being singled out because of his political views. That denial is important. Prosecutors generally have broad discretion over whom to charge, and courts are often reluctant to second-guess those decisions without strong evidence.
For Comey, the challenge is to connect political pressure, investigative conduct and the final charging decision in a way that persuades the judge the prosecution itself is tainted. For the government, the task is to keep the focus on the alleged threat and show that the case rests on evidence, not animus.
Grand jury questions remain
Comey’s dismissal push also intersects with a separate fight over grand jury proceedings. The New York Times has reported on Comey seeking dismissal based on alleged grand jury errors, a strand of litigation distinct from the broader misconduct and selective prosecution arguments.
Grand jury challenges are difficult. Proceedings are secret by design, and defendants do not automatically get access to transcripts or internal deliberations. But courts can order disclosure when there is a particularized need, especially if a defendant makes a credible claim that the indictment process was flawed.
Comey’s lawyers are asking the court to force more transparency into how the indictment was obtained. That could matter even if the judge does not dismiss the case outright, because grand jury materials might feed other motions or reveal weaknesses in the prosecution’s presentation.
Still, a request for disclosure is not the same as proof of misconduct. The judge will have to decide whether Comey’s claims justify opening a normally sealed part of the criminal process.
What Judge Flanagan can do
Judge Flanagan has several paths. She could deny the dismissal motions and allow the case to move toward trial. She could suppress certain evidence if she finds warrant problems. She could order a Franks hearing, require more grand jury disclosure, or ask for further briefing before ruling.
The highest-stakes outcome would be dismissal. That would require the court to find a legal defect serious enough to end the prosecution before a jury hears it. Dismissal for selective or vindictive prosecution is possible, but it is a demanding standard.
The more incremental possibility is that the judge narrows the case. If evidence from disputed warrants is suppressed, prosecutors may still proceed if they have enough independent proof. If the court finds the Instagram post is protected speech and not a true threat, the case could face a deeper constitutional barrier.
For now, the seashells case has become a test of two competing warnings. Comey’s side says ambiguous political expression is being criminalized through improper government conduct. The DOJ’s position, as reported, is that he is not being prosecuted for his views. The judge’s next rulings will determine whether the case remains about a cryptic image, or about the power of the government to build a criminal case around it.
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