James Comey Lawsuit: Indictments, Dismissal, First Amendment

Former FBI Director James Comey has been indicted twice by the federal government since September 2025. The first of the Comey indictments, brought in the Eastern District of Virginia, charged him with lying to Congress and was dismissed by a federal judge in November 2025 after she found the prosecutor had been unlawfully appointed. The second, filed in the Eastern District of North Carolina in April 2026, accuses him of threatening President Trump’s life through an Instagram post of seashells arranged to spell “86 47.” That case is scheduled for trial on October 21, 2026.

The First Indictment: Lying to Congress

On September 25, 2025, a federal grand jury in the Eastern District of Virginia charged Comey with making a false statement to Congress under 18 U.S.C. § 1001 and obstructing a congressional proceeding under 18 U.S.C. § 1505.¹ Both counts traced back to testimony he gave the Senate Judiciary Committee on September 30, 2020.

The false-statement count zeroed in on a single denial: Comey had told senators he never authorized anyone at the FBI to act as an anonymous source for news reports about an FBI investigation. Prosecutors said the denial was false. The obstruction count was broader, alleging “false and misleading statements” to the committee without specifying which ones.² The grand jury reportedly rejected a third proposed charge, and only 14 of 23 grand jurors voted to return the two counts that were filed.³

Comey was arraigned in Alexandria on October 8, 2025, pleaded not guilty, and was released on his own recognizance. Judge Michael Nachmanoff set a trial date of January 5, 2026. His lead defense attorney, Patrick Fitzgerald, told the court he would seek dismissal on grounds of vindictive and selective prosecution and would also challenge the prosecutor’s appointment.⁴

Why a Judge Threw the Case Out

The indictment was signed by Lindsey Halligan, whom Attorney General Pam Bondi had installed as interim U.S. Attorney for the Eastern District of Virginia three days earlier. Halligan had previously served as White House Senior Associate Staff Secretary and as a member of Trump’s personal legal team, and she had no prior experience as a federal prosecutor.⁵ She replaced Erik Siebert, who had resigned on September 19 after reportedly declining to pursue the case; career prosecutors in the office had reportedly shared concerns about its viability.³

Under 28 U.S.C. § 546, the Attorney General may appoint an interim U.S. Attorney for 120 days after a vacancy, after which the appointment power shifts to the district court. Siebert had been serving as interim U.S. Attorney under an appointment made January 21, 2025. Comey’s defense argued the 120-day clock had run on May 21, 2025, months before Bondi installed Halligan. The government responded that the statute allows successive 120-day appointments.⁶

On November 24, 2025, Senior U.S. District Judge Cameron McGowan Currie dismissed the indictment. Currie, brought in by the Fourth Circuit’s chief judge to preserve public confidence in the case, ruled that Halligan “had no lawful authority” to present it to the grand jury, that her appointment violated both the statute and the Appointments Clause, and that the Justice Department’s attempt to retroactively designate her a “special attorney” was “ineffective.” All of Halligan’s actions, the judge wrote, “constitute unlawful exercises of executive power and must be set aside.”⁷⁸ The same order dismissed a separate mortgage-fraud case Halligan had brought against New York Attorney General Letitia James.

Can the Charges Come Back?

Currie’s dismissal was without prejudice, meaning refiling is technically permitted. But the statute of limitations on the false-statement charge expired on September 30, 2025, which Comey’s team says would bar a new indictment on that count.⁹

The government is instead appealing. The Justice Department filed a notice of appeal on December 19, 2025, and the Fourth Circuit consolidated the case with the government’s appeal in the James matter. The government’s opening brief was filed February 9, 2026, Comey’s response on March 3, 2026, and in-person oral argument is scheduled for September 15 through 18, 2026. Amicus briefs have been accepted from the Pacific Legal Foundation, the Virginia Association of Criminal Defense Lawyers, bipartisan former federal judges and U.S. Attorneys, and bipartisan current and former members of Congress.¹⁰¹¹ The central question on appeal is whether § 546 lets the Attorney General make back-to-back 120-day interim appointments or whether the authority passes to the district court after the first window closes.

The Second Indictment: The Seashell Post

On April 28, 2026, a federal grand jury in the Eastern District of North Carolina returned an entirely different indictment. It arises from an Instagram post Comey published on May 15, 2025, showing a photograph of seashells arranged to spell “86 47,” captioned, “Cool shell formation on my beach walk.”¹²

The indictment charges two counts:

Count One, under 18 U.S.C. § 871, alleges Comey knowingly and willfully made a threat to take the life of or inflict bodily harm upon the president.
Count Two, under 18 U.S.C. § 875(c), alleges he knowingly transmitted in interstate commerce a communication containing a threat to kill the president.

The maximum sentence on conviction is 10 years in prison. The government has also provided notice that it will seek forfeiture of property connected to the alleged offenses.¹³

Prosecutors describe the post as “a serious expression of an intent to do harm to the President of the United States.” In the government’s reading, “86” is restaurant slang for getting rid of something and “47” identifies Trump as the 47th president, producing a coded death threat.¹⁴ Comey deleted the post the same day it went up and said he opposed violence of any kind and had not realized the numbers could be associated with harm.¹⁵

The First Amendment Question

The case turns on whether Comey’s post is a “true threat” outside First Amendment protection or protected political speech. In Watts v. United States (1969), the Supreme Court reversed the conviction of a man who said that if drafted, “the first man I want to get in my sights is L.B.J.,” classifying the statement as “crude offensive” political opposition rather than a genuine threat.¹⁶

In Counterman v. Colorado (2023), the Court held that a true-threat conviction requires proof the defendant had “some subjective understanding of the threatening nature of his statements.” Recklessness is enough, meaning prosecutors must show Comey consciously disregarded a substantial risk that people would read the post as threatening.¹⁶ Quinnipiac law professor Wayne Unger wrote that past successful prosecutions for threatening a president have involved defendants who took concrete steps showing awareness that their speech was threatening; those indicators, he said, “are absent in Comey’s case.”¹⁷

The meaning of “86” is itself disputed. Merriam-Webster defines it primarily as “to throw out” or “to refuse service to,” notes usage meaning “to kill” is sparse and recent, and has not formally added that definition. The Oxford English Dictionary does not define the term as meaning “to kill.” In June 2026, a separate federal judge ruled that an “8647” flag displayed by protesters was protected speech, noting that dictionaries do not support the violent reading.¹⁸ Acting Attorney General Todd Blanche has said the prosecution rests on “more” than the Instagram photo, though no additional evidence has been publicly disclosed, and he has said individuals without Comey’s “reach and profile” would not be similarly investigated.¹⁹

Where the North Carolina Case Stands

The case, docketed as 4:26-CR-16-FL-RN, is assigned to U.S. District Judge Louise Wood Flanagan.²⁰ Comey’s defense team in North Carolina includes Raleigh attorney Joseph Zeszotarski Jr. and Patrick Fitzgerald, who filed a notice of special appearance in May 2026.²¹

In a May 20, 2026, filing, Comey’s attorneys said he “expects to file multiple motions on constitutional grounds seeking dismissal of the indictment,” including First Amendment arguments. Judge Flanagan granted a continuance to allow those motions, citing “the gravity of the charges, anticipated further discovery production… and the need to provide defendant time to file motions.” On June 12, 2026, she barred all amicus filings in the case, ruling no federal criminal rule provides for them.²²

Pretrial motions are due July 28, 2026, arraignment is set for September 30, 2026, and trial is scheduled to begin October 21, 2026.²³

Claims of Political Retaliation

Both prosecutions have been widely characterized by critics as politically motivated. President Trump had publicly demanded action against several of his critics on Truth Social, including Comey, Senator Adam Schiff, and Letitia James, labeling them “guilty as hell.”⁸ Loyola Marymount law professor Laurie Levinson said the traditional firewall between the White House and the Justice Department had “completely collapsed” and called the situation “unprecedented,” describing the case as one that “smacks of vindictive prosecution.”²⁴ Comey called the prosecution “based on malevolence and incompetence” and a “threat to the rule of law.”²⁵

The administration rejects those characterizations. Attorney General Pam Bondi said the first indictment reflected the department’s “commitment to holding those who abuse positions of power accountable.” Vice President JD Vance said the administration’s legal actions are “driven by law and not by politics.” White House Press Secretary Karoline Leavitt accused Judge Currie of “clearly trying to shield” Comey and James from accountability.²⁴²⁵

Who Comey Is

Comey served as FBI director from September 2013, when the Senate confirmed him 93 to 1, until Trump fired him on May 9, 2017. His tenure was defined largely by the investigation of Hillary Clinton’s use of a private email server; in July 2016 he announced the FBI would not recommend charges but called her handling of classified information “extremely careless,” then reopened the inquiry days before the 2016 election. After his firing he became one of Trump’s most prominent public critics. A 2019 Justice Department inspector general report found Comey had violated FBI policy by retaining and sharing memos of his meetings with Trump, though prosecutors at the time declined to bring charges.²⁶

1
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2
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Virginia Lawyers Weekly. Unlawful US Attorney Appointment, Charges Dismissed
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FactCheck.org. Definition of 86 at the Heart of Comey Indictment
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21
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