James Comey surveillance motion accuses DOJ of illegal phone tracking

A new James Comey surveillance motion accuses the Justice Department and U.S. Secret Service of misconduct in the federal case over his “86 47” Instagram post, with his lawyers asking a judge to throw out the charges or suppress evidence gathered from his accounts.

Comey’s legal team filed several motions late Tuesday in the North Carolina case, where the former FBI director faces two charges of threatening to kill the president. The indictment stems from a photo Comey posted in spring 2025 showing seashells arranged as “86 47,” a phrase President Trump and allies said amounted to a threat against Trump, the 47th president.

Comey has denied threatening violence. According to CBS News, he said after deleting the post that he had understood the shells as a political message and that he opposes violence of any kind.

Why does James Comey say the surveillance was illegal?

Comey’s lawyers allege the Secret Service carried out “illegal electronic surveillance” at the request of a senior DOJ official and without a warrant shortly after the Instagram post. Court filings cited by his attorney Patrick Fitzgerald include Secret Service discussions about “pinging” Comey’s phone to find its location while he was expected to travel from North Carolina to his home in Virginia.

One unnamed Secret Service official wrote in a message filed in court that personnel did not believe anyone’s life was in immediate danger and that “legally it was a bad idea to ping the phone.” Another filing shows a request to Verizon for location information tied to an “emergency” situation.

Fitzgerald said in an affidavit that he reviewed substantial discovery from the government. CBS News reported it sought comment from the Justice Department, the Secret Service and Comey’s legal team about the Tuesday filings.

What Comey is asking the judge to do

Comey’s lawyers are seeking dismissal on selective and vindictive prosecution grounds. They argue the case was brought because Trump holds animus toward Comey and his protected speech, and because Comey successfully challenged an earlier indictment.

The Justice Department has denied that Comey was targeted because of his politics. Acting Attorney General Todd Blanche previously told CBS News the North Carolina case was led by local prosecutors and, when asked whether Trump directed the indictment, answered: “Of course not, absolutely, positively not.”

Comey’s team also wants U.S. District Judge Louise W. Flanagan to suppress evidence from warrants covering digital accounts belonging to Comey and his wife. The lawyers requested a Franks hearing, a proceeding where a judge examines whether the government misled the magistrate who approved a warrant.

According to Comey’s lawyers, the warrant materials left out known facts and included material falsehoods, including what they called a strange suggestion that Comey’s lawyer, a former U.S. attorney, and Comey’s wife obstructed the investigation.

How the “86 47” post became a criminal case

The phrase “eighty-six” is commonly defined as meaning to eject or get rid of something. Comey’s lawyers said federal investigators interviewed a witness who initially viewed the post as restaurant slang meaning an item was unavailable, then changed perspective after hearing Rudy Giuliani discuss it on a podcast.

The filings also say the FBI searched for connections between Comey’s past cases and the term “86,” including in files related to mob boss John Gambino, whom Comey prosecuted in the 1990s. Comey’s lawyers said those searches found no such references, and that former Gambino crime family member Salvatore “Sammy the Bull” Gravano denied Comey had used the term with him.

Comey’s filings arrived a day after he separately asked Flanagan to dismiss the indictment on First Amendment grounds, arguing the post was protected speech and was not a true threat. He is set to be arraigned Sept. 30 in New Bern, North Carolina.

This story draws on original reporting from CBS News.