Comey claims DOJ conducted “illegal” surveillance in new motion seeking dismissal of Trump threat charges

Former FBI Director James Comey filed new motions late Tuesday in his effort to toss out federal charges accusing him of threatening President Trump’s by posting a photo of seashells arranged to form the numbers “86 47,” casting the indictment as the latest salvo in a yearslong effort to punish him for criticizing the president — and accusing the government of misconduct.

The filing — accompanied by a 76-page-long spreadsheet listing out all of the insults Mr. Trump and Comey have hurled at each other over the last nine years — argues the indictment should be dismissed on the grounds of vindictive and selective prosecution. Comey’s lawyers also asked the court to suppress evidence from warrants for Comey’s accounts, and to force the government to disclose the grand jury proceedings that led to his indictment.

“Here, the government has singled out Mr. Comey for prosecution because President Trump harbors animus toward Mr. Comey and his protected speech, and it has done so in direct response to the President’s urgings and Mr. Comey’s successful motion to dismiss a prior indictment,” the former FBI chief’s attorneys argued. 

The Justice Department has denied that Comey is being singled out due to his political views.

In the motion to dismiss, Comey also accused the U.S. Secret Service of conducting “illegal electronic surveillance of Mr. Comey at the request of a high-level DOJ official” without a warrant shortly after Comey’s spring 2025 Instagram post. 

Filings submitted by his lawyers show discussions between Secret Service staff about “pinging” Comey’s phone to track its location, which some personnel viewed skeptically, and a request for Verizon to provide location information due to an “emergency” situation. At the time, Comey was set to travel from North Carolina to his Virginia home.

“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,” an unnamed Secret Service official said in one message.

Those details on the surveillance — along with other allegations about the government’s conduct — are from an affidavit filed by Comey’s attorney, Patrick Fitzgerald, who said he reviewed “substantial discovery provided by the Government.”

Comey’s legal team is also asking for a Franks hearing, a court proceeding where the judge overseeing his case would determine if the government misled or lied to the magistrate judge who approved search warrants. In this case, the warrants are related to digital accounts belonging to the former FBI director and his wife.

The affidavits at the center of those search warrants, Comey’s legal team said, “omitted facts known to the affiant,” and “misled the magistrates with material falsehoods, bizarrely insinuating that Mr. Comey’s lawyer (a former U.S. Attorney) and Mr. Comey’s wife had obstructed the government’s investigation.” 

Comey’s lawyers wrote that the warrant applications cited a person who knew and spoke to Comey’s wife. In interviews with federal law enforcement, Tuesday’s court filings said, that witness “admitted that they had been estranged from Mr. Comey and had not spoken to him for at least two years,” and “made clear their intense bias” against Comey.

Again citing the evidence reviewed by Fitzgerald, Comey’s legal team said the witness told law enforcement in both interviews that their first reaction to the “86 47” post was that it was related to restaurant slang that an establishment was out of a menu item, until they listened to an episode of Rudy Giuliani’s podcast.

Then, Comey’s lawyers said, the FBI in September 2025 searched its database for any “direct association” between any cases Comey worked on and the use of the term “86,” which Fitzgerald said resulted in “‘inconclusive results.'” 

His lawyers said a separate search of the FBI’s file in the case of mob boss John Gambino, whom Comey prosecuted in the 1990s, also contained “no references” to the term. They said that after Comey was indicted, an FBI agent and a federal prosecutor interviewed Salvatore “Sammy the Bull” Gravano, a former member of the Gambino crime family, and asked if Comey ever used the term “86” with him, which Gravano denied.

The new slate of court filings came one day after Comey asked U.S. District Judge Louise W. Flanagan, who is overseeing his case, to dismiss the indictment against him on separate grounds. He argued the case against him targets speech protected by the First Amendment, and that the “86 47” phrase at the heart of the indictment is not a true threat against Mr. Trump.

Comey was indicted last year in a different case that accused him of lying to Congress in 2020. He and his legal team moved to dismiss that case on similar grounds, but the Virginia federal judge overseeing the case never ruled on the issue. Instead, the judge dismissed it on the grounds that the prosecutor who secured the indictment against him was unconstitutionally appointed to her role as interim U.S. attorney.

Comey is set to be arraigned on the two charges of threatening to kill the president on Sept. 30 in New Bern, North Carolina.

CBS News has reached out to the Justice Department, the U.S. Secret Service and Comey’s legal team for comment on Tuesday’s filings.

The bout of criminal charges against Comey follow a years-long feud between the president and the former FBI leader, dating back to when Mr. Trump fired Comey during his first term in 2017. Since then, Comey has castigated Mr. Trump and called him “morally unfit” to be president, while Mr. Trump has called Comey a “dirty cop” and mused about prosecuting him.

In May 2025, Comey posted on Instagram a photo of seashells on a beach arrayed to form the numbers “86 47.” He didn’t make his meaning clear, but “eighty-six” typically means “eject” or “get rid of,” and Mr. Trump is the 47th president.

Mr. Trump and his allies accused Comey of threatening the president’s life, which Comey strongly denied, saying he came across the shells and assumed they were a “political message.” He deleted the post, saying he “oppose[s] violence of any kind.”

The Secret Service quickly launched an investigation, and Comey was interviewed by agents, CBS News has previously reported. The matter remained dormant for nearly a year, until Acting Attorney General Todd Blanche unveiled charges against Comey in April.

In order to get an indictment tossed for selective prosecution, a defendant needs to show that they were charged for a discriminatory reason and that “similarly situated” people haven’t been prosecuted for the same conduct. To show vindictive prosecution, a defendant needs to show that they were prosecuted solely out of animus or to punish them for exercising a legal right. Courts tend to be skeptical of these claims. 

As evidence, Comey’s legal team noted that vast amounts of merchandise with the message “86 47” or “86 46” — referring to former President Joe Biden — is available for sale online, and the government has not taken similar steps to prosecute the sellers.

They also pointed to Mr. Trump’s history of “personal attacks and calls to retaliate against Mr. Comey through criminal prosecution.” They suggested that the Justice Department pursued charges against Comey for threatening Mr. Trump “based on political expediency” after their previous indictment for lying to Congress was tossed out.

Blanche has denied that Comey was prosecuted for political reasons, telling CBS News earlier this year that the case was spearheaded by “local prosecutors” in North Carolina.

Asked in a separate CBS News interview if Mr. Trump directed the indictment, Blanche said: “Of course not, absolutely, positively not.”

“If anybody in this country thinks — especially given what happened over the past couple of years with respect to President Trump — that it is okay for anybody to threaten the president of the United States … and then have the media or others say, well that’s not serious, then we have a bigger problem than I even imagined in this country,” Blanche said.