Comey Offers Judge an Easy Way Out
In new court filings last evening, James Comey unloaded a triple shotgun blast at the bogus “86 47” seashells prosecution against him.
I’ll get into the trio of filings — which include a cameo by Sammy the Bull Gravano and juicy details about President Trump’s intense personal interest in the case as relayed through internal Secret Service communications — in a moment. I promise.
But first let me orient you briefly to what I suspect is Comey’s strategy here.
As we discussed here yesterday, Comey had already filed another motion to dismiss the indictment on Monday before last evening’s flurry. That motion is the most straightforward, direct, least messy way for the judge to end this case, arguing (quite reasonably) that posting to Instagram a photo of an arrangement of seashells that spells out “86 47” is in no way a true threat to President Trump and in any event is constitutionally protected free speech.
Still, it’s a big step for a judge to dismiss an indictment — especially in a high-profile case like this — based solely on the indictment being facially insufficient. But the choice Comey is giving the judge makes that option seem like the easy way out compared to donning hip waders and venturing into the muck of a vindictive prosecution analysis, which involves peeling back the curtain on the rotten Trump DOJ, the over-involved Trump White House, and now the role of the Secret Service in this whole mess.
While Comey is clearly exalting in exposing some of the depredations of the Trump II presidency and its corrupt misuse of the Justice Department, he first and foremost wants to get out from under this indictment and spare himself and his family the risks of a conviction. And so the sequencing of the filings makes the judge’s hard lift of straight-up dismissing the indictment for failure to allege an actual crime seem a whole lot less heavy considering the alternative path this case could go down.
In one sense, this strategy could produce a disappointing result in a civics and democracy sense. Trump’s pursuit of Comey is a classic case of vindictive prosecution without precedent in American history. Yet, the corrupt and bumbling efforts are so inept that Comey may prevail in getting a prosecution thrown out for a second time without a judge even getting to the vindictive prosecution allegations.
In the Virginia case against him, Comey successfully disqualified Lindsey Halligan as interim U.S. attorney, which meant the indictment she obtained was no good. In this case, the indictment itself may also be so flawed that the case goes no farther. But probably the better way to view this is that corruptly predicated prosecutions produce corrupt investigations and shoddy lawyering. It’s all part of the same package of retributive conduct.
The New Filings
With the above framework in mind, here are the three new filings (for diehards, I’m linking to the substantive legal memoranda rather than the barebones motions themselves):
- Motion to Dismiss Indictment for Vindictive and Selective Prosecution: This motion covers a lot of familiar ground regarding Trump’s crusade of retribution against Comey, including the first failed prosecution in Virginia.
- Motion for Disclosure of Grand Jury Proceedings: This motion takes the known grand jury irregularities that judges found in the Virginia case and combines them with irregularities in the North Carolina case (including public statements by FBI Director Kash Patel and other acts and omissions revealed in discovery) to urge the judge to suspend the presumption of regularity and allow Comey access to the grand jury transcripts.
- Motion to Suppress and for Franks Hearing: Comey alleges that the FBI case agent made false statements and omitted material facts in the applications for two digital search warrants — one before the indictment to Apple and one after the indictment to Google — about the evidence gathered in the case, including exculpatory evidence.
There is a key fourth filing: a 21-page affidavit from Comey attorney Patrick Fitzgerald (the former Chicago U.S. attorney) with a whopping 43 attached exhibits that is filed in support of all three motions and offers a narration of the discovery Comey has obtained from the government thus far that is relevant to the three motions.
Rather than analyze each motion separately, I’m pulling out some of the key themes from all three motions, which are also separately narrated by Fitzgerald, who provides specific citations to the supporting documents obtained in discovery.
If you’re still with me, this is where we get into the good stuff.
Trump’s Keen Interest in the Case
Some of the juiciest details from the discovery in the case offer a glimpse of President Trump tracking the Secret Service investigation in real time from Air Force One.
Internal Secret Service communications describe the head of Trump’s protective detail, Special Agent in Charge John Bush, “expecting to have to brief POTUS. He has since briefed the Chief of Staff on the below updates….”
Later, Bush emailed from Air Force One seeking a “readout” of the Secret Service’s imminent interview of Comey at headquarters: “As I am getting LOTS of questions, is it possible for me to get an immediate readout (call) of the interview?”
Another document obtained by Comey noted that “POTUS was requesting a copy of the interview notes to use in his 6 pm press conference.”
Bush responded: “It is a hot topic on the plane and [redacted code name for President Trump] is very interested.”
At one point, Bush asked about any further updates noting “the COS just asked me.”
Another document relays that a Secret Service official was told by the Protective Intelligence Operations Center “that they received a request from SAIC Bush who received a direct request from [Secret Service code name for the President] for a summary of the interview when available.”
Ultimately, an executive summary of the Comey interview was sent to Bush on Air Force One, according to the filings.
Illegal Surveillance of Comey
After Comey arranged to talk to the Secret Service in person when he returned from the beach in North Carolina to his home in Virginia, the Secret Service tracked his cell phone despite doubts revealed in internal communications that they had the proper legal justification to do so, according to the filings.
When a senior Secret Service official said it was a “bad idea” to ping Comey’s cellphone, Bush agreed it was “legally questionable” but indicated “we might anyway.”
The Secret Service agent who signed the emergency request to Verizon to ping Comey’s cellphone said he did so “with hesitation.” Another senior Secret Service official said that “the # 3 guy at DOJ ‘wanted to ping the cellphone via an exigency request.’” It’s not clear to whom at DOJ he was referring because there was not a No. 3 official in place at that time.
Once the Secret Service pinged Comey’s cellphone, they tracked him electronically and in person on his return trip from North Carolina to Virginia, although the agents surveilling him physically lost track of him when Comey and his wife stopped at the gravesite of their infant son. The electronic surveillance continued during the cemetery visit. In a striking parenthetical, Fitzgerald writes: “(The Government later seized—pursuant to the challenged March 2026 search warrant—a photo Mr. Comey took of the flowers at his son’s grave that day.)”
A Rudy Giuliani Cameo
A recurring character in the filings identified only as Person-1 apparently knew the Comeys but had come to hold Comey in low regard. Person-1 texted Comey’s wife shortly after the Instagram post went up warning that “86” could be construed a violent term, according to the filings.
Person-1 said they initially thought “86” was a benign reference to the restaurant term but then heard a Rudy Giuliani media appearance and became convinced that Comey’s use of the term was nefarious and told the Secret Service as much when interviewed the day after hearing Giuliani.
Giuliani seems to have improbably kicked off an entire absurdist thread of the investigation when he claimed publicly that Comey had worked on organized crime cases where the term “86” was used to mean “kill.”
Trying Desperately to Find Mob Usage of ’86’ … and Failing
The most vivid scene that emerges from the slew of new filings, is a May 13, 2026, trip by the first assistant U.S. attorney and an FBI agent to the home of the notorious former mobster Salvatore “Sammy the Bull” Gravano to try to establish that the mob regularly used “86” in a violent sense.
Gravano is the former Gambino underboss who famously testified against John Gotti, admitted to participating in 19 murders, entered then left the witness protection program, and was subsequently convicted again. “He is now a podcaster,” Fitzgerald dryly observes in a footnote.
Gravano said he was convinced Comey had to know the violent connotation for “86,” but Gravano had no memory of talking about it with Comey, who as a young prosecutor was involved in the Gambino case. While mobsters did use the term “86,” Gravano told investigators, they were careful not to use it in the presence of law enforcement.
That set off an astounding search by Comey investigators for references to “86” in decades of FBI files. After searching the entirety of the FBI’s Sentinel database, an agent reported:
These searches produced inconclusive results regarding the use of “86” or “eighty-six” as a slang term. Additionally, the searcher was unable to determine if the subject would have had access or been exposed to any potential files meeting the search parameters.
Investigators did a separate search of the Gambino case file: The case file contained no references to the term “86.” Same with the trial transcript: nada. They also talked to two former FBI agents who investigated the mob who had never heard “86” used to mean “kill.”
Secret Service Seemed Satisfied There Was No Crime
The discovery in the case leaves the strong impression that after its initial investigation into Comey’s Instagram post, the Secret Service — which has a unit dedicated to the nonstop stream of threats directed towards its protectees — was satisfied there was no crime here.
After leading the May 2025 interview of Comey in person at Secret Service headquarters, a senior official emailed a group of other Secret Service personnel, suggesting that the case was “resolved,” as so many initial threat investigations are: “You all contributed, some in non-traditional ways, to this issue being resolved in a professional and efficient manner.”
Discovery shows the Secret Service treated the Comey investigation as a “non-referred” matter meaning under internal policy “the determination can be made based upon initial investigation that there is no risk of an unwanted outcome and there is no judicial outcome.”
The Secret Service investigation, after the initial flurry, went nowhere and by the fall of 2025 it seemed like it had died. But in October, it was revived by the FBI out of its Charlotte office.
Comey Attorney-Client Privilege Violated AGAIN
The violation of Comey’s attorney-client privilege had already been an issue in the Virginia case and spawned an entire separate case involving Daniel Richman, the Comey attorney who is also a Columbia University law professor, who prevailed against the Justice Department.
But stunningly it happened again in the “86” investigation, Comey claims.
In the search warrant for Apple, “the government made no provision whatsoever to screen Mr. Richman’s communications,” Fitzgerald alleged. In addition, investigators only filtered for office landline numbers of another Comey attorney, and not his cellphone number.
Last month, prosecutors agreed to “quarantine” two text conversations Comey had with the second lawyer, according to Fitzgerald, but only after those communications had already been reviewed by the first assistant U.S. attorney, two other assistant U.S. attorneys, the FBI case agent and an FBI supervisor. They told Fitzgerald last month they had looked at the text thread only after they had obtained the indictment against Comey.
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