Comey alleges government surveillance after ‘86 47’ social media post

Former FBI Director James Comey alleges in a new court document that government agents tracked him physically and electronically as he drove along Interstate 95 from North Carolina to Virginia in 2025. The surveillance started the day after Comey posted seashells arranged to spell “86 47” on social media.

That’s just one of the revelations in a dozen new North Carolina federal court filings Tuesday from Comey’s lawyers.

Comey is asking US District Judge Louise Flanagan to dismiss a criminal case charging him with threatening President Donald Trump with the social media post. Comey filed a motion Monday to dismiss the case based on the argument that the seashells post did not amount to a “true threat” that could be prosecuted.

A second motion to dismiss filed Tuesday argued that Comey is being targeted by vindictive and selective prosecution. Comey’s lawyers are also seeking to suppress evidence, and they have filed a motion to disclose information about the grand jury proceedings that led to Comey’s indictment.

An affidavit from Comey lawyer Patrick Fitzgerald, a former Chicago-area US attorney, included the information about the surveillance.

On May 15, 2025, Comey posted a “photograph of someone else’s seashell arrangement spelling out ‘8647,’” Fitzgerald wrote. Afterward, a woman approached the house where Comey was staying, “shouting and gesturing profanely.” Comey then called the local police chief and left a voicemail notifying him about the “controversy over his post.”

Within a couple of hours, Comey faced a phone interview with a US Secret Service agent.

“Discovery reveals that the next day, the Secret Service conducted both physical surveillance and electronic surveillance of Mr. Comey (namely, the real-time tracking of his cellphone’s location) as Mr. Comey and his wife drove from North Carolina home to Virginia, where he was to be interviewed a second time,” Fitzgerald wrote. “The Government obtained no warrant or court order for the electronic surveillance.”

“The Comeys were also physically surveilled during the trip,” Fitzgerald noted.

The slang term “86” means “to throw out,” “to get rid of,” or “to refuse service to,” according to Merriam-Webster.com. Trump is the 47th American president.

Among the affidavit’s other revelations was information about the government’s investigation into whether the number “86” also refers to violent acts. The government consulted law enforcement officers with gang-related experience.

On May 8, a government agent interviewed Salvatore “Sammy the Bull Gravano,” a high-profile “former Gambino crime family underboss,” according to Fitzgerald’s affidavit. “Mr. Gravano stated his belief that Mr. Comey had to know what the term ‘86’ meant ‘as it related to killing someone.’”

Comey’s lawyers made their case in a separate memorandum for rejecting the “vindictive” and “selective” prosecution of the former FBI director.

“The indictment must be dismissed under two bedrock legal doctrines,” Comey’s lawyers wrote. “First, the government instigated this prosecution based on Mr. Comey’s protected speech and to vindicate the President’s animus towards Mr. Comey, in violation of First Amendment and due process principles. Second, the government engaged in selective prosecution, in violation of equal protection principles.”

“Dismissal of federal criminal charges under these doctrines has historically been rare,” the memo continued. “That is because for decades the DOJ’s independence and integrity have guarded against the use of the criminal process to punish enemies or settle political scores. The prosecutions of Mr. Comey mark a sharp break from that tradition. Ample objective evidence — much of which comes directly from government officials’ own public statements and admissions — establishes that the President’s animus toward Mr. Comey led to this vindictive and selective prosecution.”

The motion to suppress accused government officials of “misleading the issuing magistrates about fundamental facts of the case” when seeking search warrants.

“According to the affidavits submitted by the government in support of those warrants, Mr. Comey’s Instagram post was a ‘true threat’ against President Trump, a crime punishable by imprisonment, because Mr. Comey’s experience prosecuting organized crime in the Southern District of New York would have made him aware that the term was a call for violence against the President,” according to a memo supporting the motion. “The inference that Mr. Comey was exposed to a supposedly violent alternative meaning of ‘86’ during his prosecutorial days was thus central to the government’s probable cause showing.”

“But the affidavits supporting the applications for those warrants — sought and issued ten and twelve months after the Instagram post, respectively — omitted facts known to the affiant that eviscerated that theory,” Comey’s lawyers wrote.

A separate motion questioned the grand jury process that led to Comey’s indictment.

“The record in this case raises a significant risk that irregularities in the grand jury process influenced the grand jury to return an indictment,” Comey’s lawyers alleged in a memo.

“[T]he circumstances surrounding the return of the indictment in this case indicate that the government may have misstated key factual and legal issues to the grand jury,” according to the memo. “Despite the absence of any true threat of violence in Mr. Comey’s social media post depicting seashells arranged to state a common political slogan, the government sought a prosecution here in response to President Trump’s vindictive campaign against political enemies.”

“Facing mounting pressure from the highest levels of the Department of Justice to indict Mr. Comey and persistent failures to find any evidentiary support for the government’s core factual theory, the government misrepresented and omitted key relevant facts to obtain further search warrants,” Comey’s lawyers alleged.

Comey faced a deadline Tuesday to file pretrial motions. He argued in a court filing Monday that the disputed social media post did not amount to a “true threat” against the president.

“[B]oth Counts of the indictment seek to punish Mr. Comey for a social media post expressing a political viewpoint,” his lawyers wrote in a motion to dismiss the indictment. “As a matter of law, that post was protected by the First Amendment and falls outside the scope of 18 U.S.C. § 871(a) and 18 U.S.C. § 875(c),” the two federal laws cited in the indictment.

“This indictment targets protected speech at the heart of the First Amendment,” Comey’s lawyers explained in a memorandum linked to Monday’s motion. “Mr. Comey, an outspoken critic of President Trump, posted a photograph of seashells spelling out ‘86 47,’ a well-known political slogan that expresses opposition to the President. In fact, thousands of items featuring this slogan have been sold on the internet and are available to this day, and the slogan was commonly displayed at protests around the country in the months preceding Mr. Comey’s post.”

“But the government now singles out Mr. Comey to prosecute one of the President’s most prominent critics for publishing another person’s statement of political opposition,” the memo continued. “That attempt to suppress core political speech contravenes both the statutes at issue and the First Amendment.”

“To justify this prosecution, the indictment alleges that Mr. Comey’s ‘86 47’ post constitutes a ‘true threat’ on the President’s life,” Comey’s lawyers wrote. “That claim is contradicted by every possible source of meaning: dictionaries, context, precedent, and common sense. ‘86’ simply means ‘get rid of’ or ‘eject’ and has no violent connotation except in the most uncommon usages. Most dictionaries do not even list the meaning — ‘to kill’ — that the government now proposes.”

“And when combined with ‘47’ — slang for President Trump, the forty-seventh President — ‘86’ becomes nothing more than a call to oppose President Trump,” the memo added. “Thus, in this context, no reasonable observer would understand the phrase ‘86 47’ to connote violence at all — let alone to threaten that Mr. Comey personally would commit violence against the President.”

“Even under the least charitable interpretation of Mr. Comey’s statement, it would not constitute a true threat — i.e., a serious expression of Mr. Comey’s intent to harm the President,” Comey’s lawyers wrote. “Some of Mr. Comey’s critics, including the President, have claimed that the post should be implausibly read as a veiled call for other people to act violently. But even if that were a viable interpretation (and it is not), that still would not make the post a true threat — the only crime alleged in the indictment.”

“Instead, such a statement would constitute what the Supreme Court has recognized to be protected political hyperbole,” the memo continued. “And such a hyperbolic appeal to others would not remotely qualify as an incitement to violence — an offense the indictment does not charge in any event. The true-threat theory thus fails under an objective reasonable observer test as a matter of law. Courts have regularly dismissed indictments alleging statements far more ‘threatening’ than Mr. Comey’s social media post, and the same result is warranted here.”

“Because the indictment targets and chills core political speech and fails as a matter of law, it must be dismissed at this juncture,” Comey’s lawyers added. “Forcing Mr. Comey to stand trial for a statement opposing the President — even if he is ultimately acquitted — would itself be an unconstitutional punishment of free speech. And it would invite future prosecutions by the Executive Branch against perceived political enemies for their opposition to the President.”

Comey is scheduled for arraignment on Sept. 30 in New Bern. A trial is scheduled on Oct. 21.

Comey faces two charges related to alleged threats against Trump. The charges are based on a 2025 Instagram post in which Comey documented seashells on a beach arranged to spell out “86 47.”

Comey appeared in a Virginia federal courthouse on April 29, the day after his indictment.

The indictment charges that Comey “knowingly and willfully made a threat to take the life of, and to inflict bodily harm upon the President of the United States.”

While in the “Eastern District of North Carolina,” Comey “publicly posted a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out ‘86 47,’ which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States,” according to the indictment.

A second count charges that Comey “knowingly and willfully did transmit in interstate and foreign commerce a communication that contained a threat to kill the President, Donald J. Trump, specifically.”

“Threatening the life of the President of the United States is a grave violation of our nation’s laws,” US Acting Attorney General Todd Blanche said in a news release. “The grand jury returned an indictment alleging James Comey did just that, at a time when this country has witnessed violent incitement followed by deadly actions against President Trump and other elected officials. The temperature needs to be turned down, and anyone who dials it up and threatens the life of the President will be held accountable.” 

Comey is charged with threatening the president in violation of 18 U.S.C. § 871(a) and transmitting a threat in interstate commerce in violation of 18 U.S.C. § 875(c). He faces a maximum penalty of 10 years in prison if convicted.

The since-deleted social media post prompted a backlash last year. “Cool shell formation on my beach walk,” Comey wrote along with the photo of the arranged sea shells in the sand.

“I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message,” Comey wrote in a later Instagram post. “I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.”

The North Carolina case was the Justice Department’s second indictment of Comey in seven months. In September 2025 he faced an indictment on charges that he lied to and obstructed Congress during testimony in 2020. That case was dropped when a judge concluded that the prosecutor handling the case had been appointed illegally.

“Comey alleges government surveillance after ‘86 47’ social media post” was originally published on www.carolinajournal.com.