Comey claims Trump's DOJ illegally surveilled him after '86 47' post
WASHINGTON, DC: Former FBI Director James Comey is asking a federal judge to throw out criminal charges by claiming newly disclosed evidence shows investigators themselves questioned the legality of key steps taken after his controversial "86 47" Instagram post.
Comey argues the filings shift attention from the alleged threat against President Donald Trump to the government's conduct during the investigation. He also claims he was singled out for prosecution because of Trump's longstanding animosity toward him.
James Comey alleges illegal surveillance by DOJ
In motions filed late Tuesday, July 28, Comey's legal team accused the Justice Department of vindictive and selective prosecution while also seeking to suppress evidence obtained through search warrants and force disclosure of grand jury proceedings.
One of the filings alleges the US Secret Service carried out "illegal electronic surveillance of Mr Comey at the request of a high-level DOJ official" without obtaining a warrant shortly after his May 2025 Instagram post showing seashells arranged to spell "86 47."
According to filings cited by Comey's attorney Patrick Fitzgerald, Secret Service personnel discussed "pinging" Comey's phone to track his location as he traveled from North Carolina to his Virginia home.
The filings include an internal message from an unnamed Secret Service official who questioned the move, writing, "At that time we did not believe that anyone's life was in immediate danger and legally it was a bad idea to ping the phone."
Comey's attorneys said those details came from "substantial discovery provided by the Government."
Former FBI director challenges search warrant evidence
Comey's legal team is also seeking a Franks hearing, arguing investigators misled the judge who approved warrants targeting digital accounts belonging to Comey and his wife.
The filings contend investigators "omitted facts known to the affiant" and "misled the magistrates with material falsehoods, bizarrely insinuating that Mr Comey's lawyer (a former US Attorney) and Mr Comey's wife had obstructed the government's investigation."
The motions also challenge the credibility of a witness cited in the warrant applications.
According to the filings, that person later acknowledged they had been estranged from Comey for at least two years and demonstrated "intense bias" against him during interviews with federal investigators.
Comey's lawyers further argued the witness initially believed "86 47" referred to restaurant slang indicating an item was unavailable before later associating it with a discussion on Rudy Giuliani's podcast.
Justice Department rejects political motive claim
The new filings also renew Comey's broader argument that he is being prosecuted because of his criticism of Trump.
"Here, the government has singled out Mr Comey for prosecution because President Trump harbors animus toward Mr Comey and his protected speech," his attorneys wrote, adding that the case followed Trump's repeated calls for criminal action against the former FBI director.
As supporting evidence, Comey's lawyers pointed to merchandise featuring "86 47" and "86 46" that remains available online without similar prosecutions.
They also cited emails showing a Secret Service official traveling aboard Air Force One requested updates during Comey's interview because they were "getting LOTS of questions."
The Justice Department has denied prosecuting Comey because of his political views. Acting Attorney General Todd Blanche previously told CBS News the case was led by "local prosecutors" in North Carolina and, when asked whether Trump directed the indictment, replied, "Of course not, absolutely, positively not."
Blanche also argued that treating threats against a president lightly would create "a bigger problem than I even imagined in this country."
Comey is scheduled to be arraigned on two charges of threatening to kill the president on September 30 in New Bern, North Carolina.
