Criminal Justice

Records Show the Government Illegally Surveilled James Comey and Confirm the Absurdity of Its Case Against Him

The Secret Service asserted a nonexistent "emergency" to track Comey's cellphone, and the FBI's evidence falls far short of proving his seashell picture was a crime.

Jacob Sullum | 7.29.2026 7:00 PM

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(Justin Tang/Zuma Press/Newscom/Instagram/James Comey)

When former FBI Director James Comey used Instagram to share a photo of seashells arranged to form the numerical slogan "86 47" last year, federal prosecutors claim, he was publicly threatening to assassinate President Donald Trump. Yet before Comey posted that picture, Amazon vendors had offered more than 200,000 products featuring that supposedly homicidal phrase or variations on it, including "86 46" (referring to Joe Biden) and "86 45" (referring to Trump during his first term).

How many federal law enforcement inquiries did the sale or purchase of those products generate? Zero.

In a motion they filed on Tuesday night, Comey's attorneys cite that information from Amazon to support their argument that the April 28 indictment charging him with threatening the president should be dismissed because the prosecution is selective and vindictive, driven by Trump's personal animus against a longtime nemesis. They also submitted an affidavit in which Patrick J. Fitzgerald, one of Comey's lawyers, summarizes evidence that the defense obtained from the government through discovery. That evidence confirms that the Secret Service illegally surveilled Comey after he posted the seashell picture, and it contradicts Acting Attorney General Todd Blanche's account of how the case unfolded.

After Trump fired Attorney General Pam Bondi on April 2, Blanche was so desperate to secure his nomination to replace her that he eagerly pursued a legally absurd case against Comey based on a ubiquitous expression of opposition to the president that is clearly protected by the First Amendment. By posting that seashell photo, Blanche claimed with a straight face, Comey had committed two federal felonies punishable by up to 10 years in prison.

Comey took the picture at the center of the indictment while vacationing in North Carolina. He posted it on on May 15, 2025, with the jokey caption "cool shell formation on my beach walk." He took the post down within a few hours, offering this explanation: "I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. 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."

We already knew that the Secret Service tailed Comey and his wife as they drove back to their home in Virginia the day after the Instagram post. That was ridiculous enough, since it suggested that the former federal prosecutor, deputy attorney general, and FBI director might pose an active threat to the president's life. The new filings show that the Secret Service also submitted an "emergency" request for cellphone location information from Verizon so it could track Comey as he made his way back to Virginia.

The day of the Instagram post, a Secret Service special agent in charge (SAIC) "asked me about the possibility of pinging Comey's cell phone," an assistant to the SAIC (ATSAIC) reported in an email the next day. "I said it could be done, but it would be a bad idea."

Why? Under 18 USC 2702, a cellphone provider generally may not "knowingly divulge" customer records, but there is an exception when a "governmental entity" asks for the information if "the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency." In this case, there was no evidence to support such a belief.

"To declare an exigency exception" to the usual warrant requirement, the ATSAIC noted, "we needed to believe that there is an imminent threat to life or limb." At the time, he added, "we did not believe that........

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