The Secret Service Falsified an ‘Emergency’ to Track Comey’s Phone Over an Instagram Post, Even After Being Warned It Was Illegal

Former FBI Director James Comey is fighting to get his indictment over a since-deleted Instagram post—seashells arranged to read “86 47”—thrown out as vindictive and selective prosecution, and a new court filing from his lawyers explains why. The day Comey posted the photo, a Secret Service agent asked a colleague about “pinging” Comey’s cellphone to track his location. The colleague said it would be legally questionable, absent a genuine emergency. Federal law only allows that kind of warrantless request when there is an imminent threat to someone’s life. By the Secret Service agent’s own account, nobody believed there was one. His supervisor said they might do it anyway. They did.

Meanwhile, Trump himself was tracking the case in real time. During one of the Secret Service’s interviews with Comey, the agent traveling with Trump reported getting “lots of questions” about the interview. A Secret Service timeline entry from that day notes that Trump wanted a copy of the interview notes ahead of a press conference that evening.

Comey’s lawyers also point out that, per the FBI’s own threat database, the phrase “86” had never once appeared as a coded threat prior to Comey’s post, and two retired organized-crime agents told the FBI they’d never heard it used to mean “kill” either.

Reason reports:

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 anyone’s life was in immediate danger,” so “legally it was a bad idea to ping the phone.” The ATSAIC said he “argued against taking this option” because it was “legally questionable.” The SAIC “agreed with me but said we might do it anyway.”

And so they did. On May 16, an agent filled out a form asking Verizon for Comey’s location information, averring that the surveillance was “relate[d] to an emergency involving danger of death or serious physical injury to a person, necessitating disclosure without delay of information relating to that emergency.” … That agent said he “was asked by the SAIC to ping the cellphone of James Comey via exigency.” He added that he did so “with hesitation.” An assistant agent in charge (ASAIC) reported that “the #3 guy at DOJ ’wanted to ping the cellphone via an exigency request.’”

Acting Attorney General Todd Blanche has insisted the 11-month investigation turned up serious evidence beyond the Instagram post itself. What his own administration’s Secret Service actually found, when it had jurisdiction, was nothing. The agency closed its case even as the FBI’s own investigation, which produced little of substance until weeks before the indictment, was already technically underway.

The Executive Watch is a project of the Institute for the Study of Modern Authoritarianism, and its flagship publication The UnPopulist, to track in an ongoing way the abuses of the power of the American presidency. It sorts these abuses into five categories: Personal Grift, Political Corruption, Presidential Retribution, Power Consolidation, and Policy Illegality. Click the category of interest to get an overview of all the abuses under it.

© The UnPopulist, 2026

Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.