The former FBI director’s newest filing turns a disputed Instagram post into a broader fight over warrants, political pressure and the limits of criminalizing speech.
James Comey says the DOJ ordered illegal surveillance, and Comey is seeking to dismiss the ’86 47′ case in court filings late Tuesday, according to CBS News. The former FBI director’s latest move lays out the legal challenge he is mounting against the indictment accusing him of threatening President Trump through an Instagram photo of seashells arranged as 86 47.
The filing matters because Comey is not simply denying that the post was a true threat. His lawyers are arguing the prosecution itself is tainted by government misconduct, political retaliation and flawed warrants.
The filing widens Comey’s defense
Comey’s new motions ask the court to throw out the federal charges on the grounds of vindictive and selective prosecution. His legal team says the case is part of a yearslong campaign to punish him for criticizing Trump, not a neutral response to a genuine threat.
According to CBS News, the filing was accompanied by a 76-page spreadsheet cataloging insults and attacks exchanged between Trump and Comey over nine years. Comey’s lawyers use that history to argue the indictment cannot be separated from the public feud between the president and the former FBI director he fired in 2017.
The Justice Department has denied that Comey is being singled out because of his political views. That denial is central: courts do not dismiss indictments lightly, and a defendant claiming selective or vindictive prosecution typically must show both improper motive and unequal treatment.
Comey’s team is also asking for more than dismissal. The motions seek to suppress evidence from warrants for Comey’s accounts, force disclosure of grand jury materials and obtain a Franks hearing to test whether the government misled judges who approved search warrants.
The surveillance allegation is explosive
The sharpest new claim is that the U.S. Secret Service conducted illegal electronic surveillance of Comey at the request of a high-level DOJ official, without a warrant, after his spring 2025 Instagram post.
Filings cited by CBS News describe internal Secret Service discussions about pinging Comey’s phone to track its location. Comey was allegedly traveling from North Carolina to his home in Virginia at the time, and the government sought location information from Verizon using an emergency rationale.
One unnamed Secret Service official, quoted in the court papers, reportedly said staff did not believe anyone’s life was in immediate danger and that, legally, pinging the phone was a bad idea. Comey’s attorney, Patrick Fitzgerald, said the details came from discovery provided by the government.
If the judge finds the surveillance or warrant process violated Comey’s rights, the remedy may not automatically be dismissal. A court could instead suppress evidence, order further hearings or require the government to disclose more material. That is why the surveillance claim is both a headline-grabber and a procedural fight.
Why 86 47 is disputed
The case turns on a photo Comey posted of seashells arranged to show 86 47. Prosecutors charged him over an alleged threat against Trump, who is the 47th president. Comey’s defense says the phrase is ambiguous and not a true threat.
The number 86 has long had multiple meanings in American slang. It can mean to remove, cancel or get rid of something, especially in restaurant shorthand. It can also carry more violent meanings in some contexts, which is why the surrounding facts matter so much.
Comey’s filing says a witness first understood the post as restaurant slang indicating an item was unavailable, then shifted after listening to a Rudy Giuliani podcast. His lawyers also cite FBI searches for references to 86 in cases Comey worked on, saying the results were inconclusive.
They also point to a search involving the case file of mob boss John Gambino, whom Comey prosecuted in the 1990s, and an interview with former Gambino crime family member Salvatore Sammy the Bull Gravano. According to the filing, Gravano said the phrase can mean to kill, but doubted he would have discussed the term with Comey.
The First Amendment fight matters
Comey had already asked U.S. District Judge Louise W. Flanagan to dismiss the indictment on separate constitutional grounds one day before the new filings. That earlier motion argues the Instagram post was protected speech and not a true threat.
That distinction is important. Political speech, even harsh or ugly speech, receives strong First Amendment protection. True threats do not. The court’s task is not to decide whether the post was wise, tasteful or provocative, but whether it crossed the legal line into criminal threat territory.
The government’s position, as reflected in the indictment, is that the post amounted to a threat to kill the president. Comey’s position is that the prosecution criminalizes an ambiguous image and ignores context, including alternative meanings of the phrase.
Those arguments put the judge in a familiar but difficult position: courts must protect public officials from genuine threats while avoiding a rule that lets prosecutors punish political enemies for vague, symbolic or overheated speech.
A prior case shadows this one
Comey’s lawyers are also leaning on recent legal history. He was previously indicted in a separate case accusing him of lying to Congress in 2020. That case was dismissed, CBS News reported, because the prosecutor who secured the indictment was found to have been unconstitutionally appointed as interim U.S. attorney.
The prior dismissal does not prove misconduct in the 86 47 case. But it gives Comey’s lawyers a narrative: after one indictment failed, they argue, the government pursued another case against a longtime Trump critic.
That is why the selective prosecution claim is so politically charged. To Comey’s side, the case is retaliation dressed as law enforcement. To the Justice Department, which has denied political targeting, the issue is whether the post met the legal standard for a threat and whether investigators acted within their authority.
The judge will have to separate rhetoric from evidence. A bitter public feud may help explain motive, but a courtroom ruling will likely turn on records, warrants, internal messages and whether Comey can meet the demanding burden for dismissal.
What happens next
Comey is set to be arraigned on two charges of threatening to kill the president on Sept. 30 in New Bern, North Carolina. Before then, the court may have to address the new requests for dismissal, suppression, grand jury disclosure and a Franks hearing.
A Franks hearing would be especially significant. It would allow the judge to examine whether warrant affidavits included material falsehoods or omitted key facts. Comey’s lawyers claim the warrant applications misled magistrate judges, including by suggesting obstruction by Comey’s wife and his lawyer, a former U.S. attorney.
Several facts remain unsettled. CBS News said it reached out to the Justice Department, the Secret Service and Comey’s legal team for comment on the Tuesday filings. The government’s full response in court will determine how directly it contests the surveillance allegation and the claims about the warrant process.
For now, Comey’s filing has turned the case from a dispute over an Instagram image into a test of investigative boundaries. The immediate question is whether the indictment survives. The larger one is how far the government can go when political speech, perceived threats and presidential security collide.
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