Former FBI Director James Comey has been indicted twice by the federal government since September 2025. The first James Comey indictment, filed in Virginia, accused him of lying to Congress and obstructing a congressional proceeding; a federal judge dismissed it in November 2025 because the prosecutor who signed it had been unlawfully appointed, and the government’s appeal is pending in the Fourth Circuit. The second indictment, filed in North Carolina in April 2026, charges him with threatening President Donald Trump through an Instagram post of seashells arranged to read “86 47.” That case is scheduled for a jury trial beginning October 21, 2026.
The Virginia Case: False Statements to Congress
A federal grand jury in the Eastern District of Virginia returned a two-count indictment against Comey on September 25, 2025, charging him with making a false statement to Congress and obstructing a congressional proceeding.1U.S. Department of Justice. Federal Grand Jury Indicts Former FBI Director for False Statements and Obstruction Both counts arose from video testimony Comey gave to the Senate Judiciary Committee on September 30, 2020, about the FBI’s Russia investigation.2BBC News. James Comey Charged With Lying to Congress Over FBI Leaks
During that hearing, Senator Ted Cruz asked Comey to confirm his 2017 testimony that he had never authorized anyone at the FBI to serve as an anonymous source for reporters covering the Trump-Russia or Clinton email investigations. Comey answered, “I stand by the testimony you summarised that I gave in May of 2017.”2BBC News. James Comey Charged With Lying to Congress Over FBI Leaks Prosecutors alleged that answer was false, arguing that Comey had authorized his then-deputy Andrew McCabe to speak to reporters as an anonymous source. The allegation drew on a 2018 Justice Department inspector general report in which McCabe told investigators Comey had authorized the disclosure.3CNN. What to Know About the James Comey Indictment
The indictment was signed by interim U.S. Attorney Lindsey Halligan. The grand jury rejected a third proposed false-statement count, issuing a “no true bill” on an allegation involving a 2016 report about the Clinton campaign.4Politico. James Comey Indictment Flaws
Comey was arraigned October 8, 2025, in Alexandria before U.S. District Judge Michael Nachmanoff. His attorney, former federal prosecutor Patrick Fitzgerald, entered a not-guilty plea, and Comey was released on his own recognizance. Judge Nachmanoff set a January 5, 2026, trial date.5Politico. James Comey Pleads Not Guilty, Trial Date Set
Why the Case Was Dismissed
The trial never happened. On November 24, 2025, Judge Nachmanoff dismissed the indictment on the ground that Halligan had been unlawfully appointed as interim U.S. Attorney.6Levin Center. U.S. v. Comey
The ruling turned on 28 U.S.C. § 546. Under that statute, the Attorney General may appoint an interim U.S. Attorney for a single 120-day period. Once that window closes, the appointment power shifts to the local district court and does not return to the Attorney General. Because a previous interim appointee, Erik Siebert, had already exhausted the 120 days, the court held the Attorney General had no authority to install Halligan as a second interim appointee.7Congressional Research Service. Analysis of Appointments Clause Issues in U.S. v. Comey
The court rejected the government’s argument that the grand jury’s independent decision to indict made the appointment defect harmless. Judge Nachmanoff found that having an unlawfully appointed prosecutor appear alone before a grand jury was a “fundamental error” that compromised the grand jury’s structural protections. He also refused to give effect to an October 31, 2025, order from the Attorney General retroactively designating Halligan a “Special Attorney,” calling it an impermissible attempt to “reach back in time and rewrite the terms of a past appointment.” The dismissal was without prejudice, leaving open the possibility of a fresh indictment through a lawfully appointed prosecutor.7Congressional Research Service. Analysis of Appointments Clause Issues in U.S. v. Comey
The Government’s Appeal
The government filed a notice of appeal on December 19, 2025, sending the case to the U.S. Court of Appeals for the Fourth Circuit (No. 25-4674).6Levin Center. U.S. v. Comey In January 2026 it moved to consolidate the appeal with a parallel case involving New York Attorney General Letitia James, whose indictment had been thrown out on the same grounds. Briefing ran from February through mid-March 2026.
Some legal analysts have argued the appeal could be dismissed as moot, since Halligan no longer serves as interim U.S. Attorney; that outcome would leave the dismissal intact.8National Law Journal. Halligan’s Exit Could Doom DOJ Appeals in Comey and James Cases In-person oral arguments are set for September 15–18, 2026.9Law360. Oral Arguments in Comey, James Appeal Set for September
The North Carolina Case: The Seashell Post
On April 28, 2026, a separate federal grand jury in the Eastern District of North Carolina returned a two-count indictment charging Comey with threatening the life of the president under 18 U.S.C. § 871 and transmitting a threat in interstate commerce under 18 U.S.C. § 875(c). A conviction carries up to ten years in prison.10U.S. Department of Justice. Federal Grand Jury Indicts Former FBI Director James Comey for Threats to Harm President Trump
The charges are based on an Instagram post Comey made on May 15, 2025. The photograph showed seashells on a North Carolina beach arranged to spell out “86 47,” captioned “Cool shell formation on my beach walk.”11BBC News. Former FBI Director James Comey’s Instagram Post Prosecutors say a reasonable person would read “86,” restaurant slang for removing something, together with “47,” a reference to the 47th president, as a serious expression of intent to harm Donald Trump.12NBC News. James Comey Indicted Over Seashell Photo
Comey deleted the post the same day and published a follow-up saying he had assumed the shells were “a political message” and that it “never occurred” to him the numbers might be associated with violence.13Yahoo News. What Is the Instagram Post That Got James Comey Indicted The Secret Service interviewed him about the post that same month.
Comey surrendered to law enforcement on April 29, 2026, and made an initial appearance in Alexandria, Virginia. Magistrate Judge William E. Fitzpatrick declined to impose release conditions, saying, “They weren’t necessary the last time; I don’t see why they’re necessary this time.”14The Hill. James Comey Surrenders to Trump DOJ Comey was not asked to enter a plea at that appearance.15CNN. Former FBI Director James Comey Surrenders to Law Enforcement
Trial Schedule
The case was assigned to U.S. District Judge Louise Flanagan in the Eastern District of North Carolina.16ABA Journal. Longtime North Carolina Federal Judge Assigned to Comey Case The original arraignment date of June 30, 2026, and July 15 trial were pushed back after the defense sought more time to prepare constitutional motions and to allow discovery to be produced. The government did not oppose the request, and Judge Flanagan granted the continuance on May 26, citing the “gravity of the charges.”17Carolina Journal. Comey Arraignment Set for September, Trial in October in New Bern
Under the revised schedule, arraignment is set for September 30, 2026, at 10:00 a.m. in New Bern, North Carolina, with jury trial to begin October 21 if Comey pleads not guilty. Pretrial motions are due July 28, government responses by August 18, and defense replies by September 1.18CourtListener. United States v. Comey, 4:26-cr-00016
On June 12, 2026, Judge Flanagan issued an order barring all amicus briefs, writing that “defendant and the government are ably represented by competent counsel” and that future motions to file such briefs would be summarily denied.19Yahoo News. U.S. Judge Bans Friends of Court Briefs in Comey Case
What the Threat Trial Will Turn On
The North Carolina case is expected to hinge on whether the seashell post qualifies as a “true threat” under the First Amendment. The Supreme Court’s 2023 decision in Counterman v. Colorado set the governing standard: prosecutors must show that the defendant had some subjective understanding others could view the statement as threatening. In legal terms, the defendant must have acted with at least “recklessness,” meaning a conscious disregard of a substantial risk that the speech would be read as a threat.20SCOTUSblog. True Threats, James Comey, and the Supreme Court: An Explainer
Comey’s defense is expected to argue he lacked that mental state, pointing to his prompt deletion of the post and his follow-up explanation. Prosecutors, according to reporting, plan to argue that Comey’s career as a federal prosecutor and FBI director makes it implausible he was unaware of the threatening reading.21Los Angeles Times. James Comey’s Case Will Play Out in Murky Area of Law
A Recurring Defense Theme
Across both indictments, Comey’s defense has argued that the charges reflect a personal vendetta rather than ordinary prosecutorial judgment. In the Virginia case, Patrick Fitzgerald signaled plans to file at least five motions to dismiss, including challenges based on vindictive and selective prosecution and “outrageous government conduct.”22CNN. James Comey Arraignment An October 20, 2025, filing called the prosecution an “egregious abuse of power” driven by Trump’s “years-long personal vendetta,” pointing to a Trump social media post from September 20, 2025, demanding prosecution of political enemies as “smoking-gun evidence.” The defense also argued that four former Trump cabinet officials had not been charged despite similar allegations of lying to Congress.23Politico. James Comey Criminal Case Filing
Comey’s attorneys have said they will raise the same claims in the North Carolina case, and the pretrial motions due by late July 2026 are expected to include them. Courts have not yet ruled on the merits of the selective- or vindictive-prosecution arguments in either case, and the legal bar for those claims is high.24Lawfare. The Comey Indictment and Selective or Vindictive Prosecution