Did the Secret Service Surveil James Comey Without a Warrant After '86 47' Post?
The former FBI director's cringey Instagram photos are not an "exigent circumstance" that allows law enforcement to circumvent the Constitution.
In a May 2025 Instagram post, former FBI Director James Comey shared a photo of seashells on a beach arranged to spell out "86 47." It was clearly a reference to Comey's opposition to President Donald Trump—"86" being a slang term meaning "to throw out," and Trump being the 47th president.
Right away, Trump supporters took offense, accusing Comey of calling for violence against the sitting president. "Just James Comey causally [sic] calling for my dad to be murdered," Donald Trump Jr. posted on X.
"James Comey just issued a call to action to murder the President of the United States," added Director of National Intelligence Tulsi Gabbard. Comey deleted the post, apologized, and was interviewed by the Secret Service.
The controversy was overblown from the very beginning. As Reason's Billy Binion noted at the time, Comey's post was well within the bounds of speech protected by the First Amendment. Even if it wasn't, the term 86 does not have an inherently violent meaning, and numerous pro-Trump commentators have used it against their own political opponents in recent years.
But it seems that a public apology and an interview were not the extent of the fallout. New reporting suggests the Secret Service surveilled Comey, possibly without a warrant, even though he clearly posed no danger to anyone.
Michael S. Schmidt and Eileen Sullivan of The New York Times reported this week that after Comey posted the image, the Secret Service had him "followed by law enforcement authorities in unmarked cars and street clothes and tracked the location of his cellphone."
In a sense, it's understandable to investigate, even when Comey is clearly no threat: Considering the Secret Service very publicly failed to prevent a shooter from nearly killing Trump last year, it makes sense for the agency to take a "better safe than sorry" approach. Just this week, the Secret Service suspended six agents without pay, as a result of that blunder.
"The Secret Service will vigorously investigate any individual, regardless of position or status, that may pose or be perceived as a threat to any of our protectees," a spokesman told the Times.
But when he made the post, Comey and his wife were on vacation in North Carolina, while Trump was in the Middle East. Comey clearly posed no immediate threat to the president.
"Typically, [an interview] would have been the extent of an investigation into someone like Mr. Comey, who has no violent history and previously led the federal government's foremost law enforcement agency," Schmidt and Sullivan add, "because there was more than enough to establish that Mr. Comey was not an imminent threat."
Instead, officials had Comey tailed from North Carolina back to his home in Washington, D.C., while at the same time, the Secret Service "was receiving information showing the location of Mr. Comey's phone while federal authorities were stationed at his home waiting for him to return."
This implies authorities had real-time access to Comey's geolocation data. Jake Laperruque, the deputy director of the Center for Democracy and Technology's Security and Surveillance Project, noted in a social media post that getting this information would involve either demanding real-time access to Comey's cell-site location information (CSLI) from his cellular provider or an app on his phone, or else the use of a "stingray," a device that mimics a cell tower so law enforcement can track a phone's movements.
"All these methods require court approval to be legal," Laperruque added, and "more scrutiny is needed here."
"To justify following Mr. Comey, the Secret Service cited 'exigent' circumstances," Schmidt and Sullivan note. "It is unclear what those exigent circumstances were."
"Exigent circumstances" are emergencies in which law enforcement may act quickly to defuse a situation without following proper procedures. If police officers hear someone inside a house calling for help, for example, courts have said they are justified in entering the home without a warrant to address the immediate threat.
"A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement's need to provide emergency assistance to an occupant of a home…engage in 'hot pursuit' of a fleeing suspect…or enter a burning building to put out a fire and investigate its cause," the U.S. Supreme Court wrote in Missouri v. McNeely (2013).
None of those factors apply here: Comey was on the move, but he was not "fleeing"—he was coming home from vacation. If the Secret Service really thought he warranted further scrutiny, it had plenty of time to get a warrant from a judge.
The fact that the Secret Service cited exigent circumstances implies they tracked Comey without a warrant, treating the former director of the FBI as an immediate threat when all available evidence said the opposite.
Instead, this case seems like further indication that Trump is weaponizing the federal government against his political enemies—nominally, in retaliation for being subjected to what he perceives as politically motivated investigations.
"Former CIA Director John Brennan and former FBI Director James Comey are under criminal investigation for potential wrongdoing related to the Trump–Russia probe, including allegedly making false statements to Congress," Fox News' Brooke Singman reported earlier this week.
"I think they're very dishonest people," Trump said after the news broke. "I think they're crooked as hell, and maybe they have to pay a price for that."
