Comey Tries to 86 the Seashells Case: Part II
On April 28, a grand jury in the Eastern District of North Carolina indicted former FBI Director James Comey on two felony charges, alleging that he threatened the life of President Donald J. Trump in an Instagram post. The post, which Comey shared in May 2025 while vacationing with his wife in North Carolina, featured a photo of seashells arranged to spell out “86 47.” Comey added a caption: “Cool shell formation on my beach walk.”
The seashells case marks the Justice Department’s second attempt to prosecute Comey. The first, which accused him of misleading Congress, was dismissed on grounds that the prosecutor who brought the case had not been lawfully appointed.
This time around, Comey’s pretrial defense rests on four motions, which are currently pending before Judge Louise Flanagan. In a companion piece, we analyze Comey’s two motions to dismiss. One argues that the Instagram post was protected speech under the First Amendment, while another argues that the case is a selective or vindictive prosecution driven by the president’s long-standing personal animus against Comey.
This piece takes up the remaining two motions, neither of which seeks outright dismissal of the indictment. The first motion seeks both suppression of evidence and an evidentiary hearing under Franks v. Delaware. The second seeks access to grand jury transcripts or, alternatively, in camera review by the court.
Below, we assess the motions, each of which could, if granted, subject the government’s conduct to unusual scrutiny well before trial.
Motion to Suppress and Motion for a Franks Hearing
The first is a motion to suppress evidence obtained pursuant to two court-authorized search warrants. One warrant sought information from Comey’s Apple account, while the other targeted Google accounts associated with Comey and his wife, Patrice. The scope and nature of the information the government obtained via those warrants remains unknown.
The legal basis for Comey’s motion to suppress is the Supreme Court’s decision in Franks v. Delaware, which allows a criminal defendant to challenge the validity of a search warrant based on alleged misrepresentations or omissions in the supporting affidavit. Under Franks, a defendant is entitled to an evidentiary hearing on the matter if he can make a “substantial preliminary showing” on two key points: (1) that the officer who swore out the supporting affidavit knowingly or recklessly included false statements or omitted facts, and (2) that the false statements or omissions were necessary to the finding of probable cause.
Once the defendant succeeds in making that initial showing, he is entitled to an evidentiary hearing. At that hearing, the defense bears the burden of showing, by a preponderance of evidence, that the government’s affiant knowingly or recklessly made material omissions or falsehoods. If the judge agrees, then the warrant must be voided and the evidence must be excluded from use at trial pursuant to the Fourth Amendment’s exclusionary rule.
Notably, a Franks hearing can serve as a valuable tool for the defense even if the evidence is not ultimately suppressed. The defense may—and often does—call the affiant to testify at such a hearing, thereby giving defense counsel a rare pretrial opportunity to question one of the case agents about the government’s investigation. That testimony may be useful later on, either as impeachment material or to support the factual record underlying other pending motions. In the Comey case, for example, it’s not hard to imagine that a Franks hearing could reveal facts about the government’s investigation that would support Comey’s separate motion to dismiss for selective or vindictive prosecution.
At this stage, however, the threshold question is whether Comey has made a “substantial preliminary showing” to warrant such a hearing. To that end, the motion alleges that the case agent who swore out the affidavit omitted several material facts and included false or misleading statements.
At the heart of Comey’s Franks motion is the allegation that the affiant omitted the government’s own repeated, unsuccessful efforts to substantiate its theory of the case—specifically, that “86” has a violent connotation within organized crime and that Comey, given his experience in law enforcement, would have known that. The Apple and Google warrants contain identical language to advance this theory:
More recently, the term has been attributed to an organized crime context, in which it refers to taking someone “eight miles out of town” and putting them “six feet under.” In addition to serving as an Assistant United States Attorney for a number of years, Comey served as the former United States Attorney for the Southern District of New York from 2002-2003, as the United States Deputy Attorney General from 2003-2005, and as the Director of the Federal Bureau of Investigation from 2013-2017. Within these positions, Comey handled a variety of criminal cases, including serious crimes of violence committed by organized criminal organizations.
What the affiant failed to mention is that the government had spent months trying to substantiate this theory and failed at each turn. According to Comey’s motion and an affidavit filed by his defense counsel, Patrick Fitzgerald, FBI agents in September 2025 scoured the Bureau’s Sentinel database—which contains information related to open and closed FBI investigations—for evidence that Comey had been exposed to the term “86.” That search returned “inconclusive” results. Then, in November 2025, the affiant herself ordered a review of the case file for United States v. Giovanni Gambino. In 1993, Comey served as the lead prosecutor on that case, which was brought against the boss of one of New York’s mafia crime families. That search failed to find any evidence that Comey had been exposed to the term. Later, in April 2026, the FBI conducted another search of the Gambino files, again at the affiant’s request. That search also yielded nothing. None of these failed efforts are mentioned in the affidavit.
Additionally, both warrant affidavits cite an interview Secret Service agents conducted with a Comey associate, whom Comey’s lawyers have referred to as “Person-1.” According to the affiant’s summary, Person-1 “immediately” perceived Comey’s Instagram post as a call for violence against Trump. And, “[b]ased on Comey’s extensive experience with the FBI, [Person-1] felt Comey must have known that ‘86 47’ was a call for violence.”
Comey’s motion alleges that the affiant’s narrative distorts Person-1’s statements to investigators. According to portions of the recorded interview quoted in Comey’s filings, Person-1 told investigators that his “initial” reaction was to think of “86” as non-violent restaurant slang, meaning “out of something on the menu.” Person-1 then remarked that he only arrived at a violent interpretation of the term after he listened to an episode of Rudy Giuliani’s podcast, in which Giuliani claimed that Comey worked on “specific mob cases” that involved mobsters using “86” to mean “kill”—a claim the FBI would later fail to substantiate.
With respect to the Apple warrant affidavit, Comey alleges further omissions specific to Person-1. The warrant does not disclose, for example, that Person-1 had been estranged from Comey for years and lacked any personal insight into Comey’s thinking. Nor did the affidavit disclose Person-1’s alleged bias against Comey. During Person-1’s 2026 interview with the FBI, he allegedly said he hoped Comey “goes to jail” for the “crimes that he committed” as FBI director. He also regretted that he did not “have more” information to make the Comeys “face consequences.” None of these statements are included in the affidavit.
Of the omissions and misrepresentations listed in the motion, Comey’s strongest showing is likely on the government’s failed efforts to substantiate its organized crime theory of “86.” The evidence proffered by Comey suggests that the affiant knew about the failed searches—in fact, she had personally ordered them shortly before the respective warrants were sought. That is precisely the type of “temporal proximity” that Fourth Circuit precedent treats as probative of intent in the context of a Franks motion.
Still, showing that an omission was knowing or reckless is only half of the analysis. Here, the “materiality” element is where Comey’s motion faces its greatest difficulty. Under that prong of Franks, Comey must show that the omitted information, had it been included, would have defeated the magistrate’s probable-cause finding.
Unsurprisingly, much of the government’s brief in opposition is devoted to the materiality question. The government’s central argument is that “inconclusive” searches of judicial and investigative records aren’t actually exculpatory and, as such, their inclusion in the affidavit would not have defeated probable cause. What’s more, the government argues that the affiant detailed her own general knowledge of “86” as a term that is used in organized crime contexts. Further, the government contends it wasn’t required to have evidence of Comey’s state of mind at the time the warrants were sought—that was precisely the reason the government sought the warrants in the first place.
Similarly, with respect to Person-1, the government contends that Comey’s materiality showing fails. In the government’s view, the paragraphs in the affidavits that describe Person-1’s interview are not a load-bearing part of the probable cause analysis. According to the government, Person-1’s interview could be struck from the affidavit in its entirety and the facts would still establish probable cause.
On the whole, Comey’s Franks motion and supporting materials appear sufficient to clear the “knowing or reckless” prong of Franks, at least at this preliminary stage. But by targeting the materiality prong, the government is betting that even a corrected affidavit would still clear the low bar for probable cause—a real possibility, given how courts applying Franks tend to give the government the benefit of the doubt.
Whether that wager pays off may depend on how the court characterizes some of the government’s omitted investigative efforts. Were the FBI’s searches merely “inconclusive” investigative steps that add little to the probable cause analysis, or were they significant evidence that undermined the government’s theory of the case? If Judge Flanagan takes the latter view, then Comey may have done enough to be entitled to a hearing—and, with it, a rare chance to put the government’s case agent under oath before trial.
Motion for Disclosure of Grand Jury Transcripts
Comey’s other motion seeks the disclosure of transcripts and audio recordings of grand jury proceedings that led to the indictment. Alternatively, the motion asks the court to review the materials in camera—the idea being that the court can then examine the record to determine whether the materials must be handed over to the defense.
Grand jury proceedings are generally kept secret pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. That secrecy, however, is not absolute. Under Rule 6(e)(3)(E)(ii), a court may order disclosure of grand jury materials “at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” In the Fourth Circuit, which hears appeals from the federal district court in which Comey has been indicted, a defendant seeking disclosure must show a “particularized” need for release, which the court must balance against the public’s interest in grand jury secrecy.
Notably, disclosure of grand jury materials is often a necessary first step for a defendant who wants to file a motion to dismiss based on misconduct before the grand jury. And as the “Broadview Six” case recently demonstrated, what’s in the transcripts can be enough to bring down a prosecution entirely. There, prosecutors dropped all charges against the defendants after Judge April Perry reviewed the transcripts in camera and found improper prosecutorial behavior.
Here, Comey cites two independent grounds in support of his motion for disclosure. First, he contends that the constitutional violations described in his separate motions to dismiss (for vindictive or selective prosecution and for lack of a “true threat”) raise the “strong possibility” that there were irregularities in the grand jury proceedings, not just the initial charging decision. Second, Comey argues that the same misrepresentations and omissions identified in the supporting affidavits for the Apple and Google warrants likely made their way into the government’s grand jury presentation, too.
In its response brief, the government argues that Comey comes nowhere close to meeting the “particularized need” standard required for disclosure. With respect to Comey’s first argument, the government contends that vindictive or selective prosecution claims go only to a prosecutor’s decision to seek an indictment—a matter of prosecutorial discretion that precedes and is procedurally distinct from the grand jury presentation. It follows, the government says, that such arguments cannot be used to attack the presumption of regularity that attaches to grand jury proceedings.
Similarly, the government says that Comey’s “lack of true threat” claims don’t prove that there were any irregularities in the grand jury presentation. Instead, the government casts those arguments as a disagreement about how the law should apply to Comey’s conduct, arguing that it is precisely the kind of merits question that should be resolved at trial before a petit jury.
The government adopts an even harder line in response to Comey’s argument based on the warrant affidavits. Citing the Supreme Court’s decision in United States v. Calandra, it asserts that a facially valid indictment is not subject to challenge based on claims that the grand jury was presented with incompetent, inadequate, or unlawfully obtained evidence. The government also stresses that prosecutors have no legal obligation to present exculpatory evidence to a grand jury. As such, even if the warrant affidavits are as flawed as Comey alleges, the government’s view is that those defects could not undermine the regularity of the grand jury proceedings or serve as a basis for disclosure of grand jury materials.
The government is correct that the presumption of regularity is difficult to overcome, and courts are often reluctant to allow defendants to peer behind the veil of grand jury secrecy. But courts in several high-profile cases have recently proven willing to unseal grand jury materials—an indication, perhaps, that the presumption of regularity is not as impenetrable as the government makes it out to be.
Importantly, Comey can—and does—point to the earlier, now-dismissed prosecution against him in the Eastern District of Virginia. As he notes in his motion, a magistrate judge in that case ordered full disclosure of the grand jury transcripts following in camera review of the materials. The magistrate judge found that the government’s actions raised “genuine issues of misconduct” and identified irregularities in the grand jury process, including fundamental misstatements of law by the prosecutor.
To be sure, the present indictment is a different case involving different prosecutors, as the government correctly points out. But that does not render the earlier happenings entirely irrelevant, particularly when considered alongside Comey’s specific allegations regarding selective or vindictive prosecution and other investigative irregularities. Taken together, the cumulative picture may demonstrate exactly the kind of “particularized need” that warrants, at a minimum, an in camera review of the grand jury record.
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Neither motion would end the seashells case outright. But one could put the government’s own case agent under oath, while the other could provide a rare glimpse into the grand jury proceedings that led to the indictment. If granted, either motion could bring new facts to light that support Comey’s motions to dismiss the indictment—and force the government to defend its conduct well before trial.
