A third Comey case arrives as a placeholder filing, with prosecutors still seeking an indictment in Washington
The Justice Department brought a third criminal case against James Comey on October 26, 2026, accusing him of leaking a classified document to a reporter in 2016. Prosecutors filed it as a criminal information, a charging document signed without a grand jury vote, while they work toward an indictment in Washington.
Comey's lawyers say the case is too late, because the ten-year statute of limitations ran before any indictment was returned. At an October 30 hearing, a federal judge weighed whether the placeholder charges can stand, and the department told the court it may add more counts. Comey's North Carolina threat case over a seashell photo spelling '8647' is still pending, and a Virginia case was dismissed in November 2025 over an unlawful prosecutor appointment.
Why it matters
Three prosecutions of one former FBI director test how far a president can turn the Justice Department on his critics.
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Comey indicted over '86 47' seashell photo officials call Trump threat | AP News
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"They've turned the Justice Department into a personal grudge list with a federal seal, and yet somehow the man they can't seem to convict keeps posting videos — which suggests that while Washington has mastered the indictment, it has yet to master the execution."
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May 2017 October 2026
At a hearing in Washington, the Justice Department told a federal judge it is working to obtain a grand jury indictment and has gathered additional evidence, and that it may bring more charges against Comey. The judge is deciding whether the criminal information can survive.
Prosecutors filed a criminal information accusing Comey of leaking a classified document to a reporter in connection with an October 2016 New York Times story. Comey's lawyers say the charge is barred by the ten-year statute of limitations because no grand jury indicted him in time.
A grand jury in the Eastern District of North Carolina indicts Comey on two counts of threatening the President under 18 U.S.C. § 871, citing the May 2025 Instagram post.
Judge Louise Wood Flanagan of the Eastern District of North Carolina issued an arrest warrant for Comey alongside the indictment. Prosecutors indicated Comey may be permitted to self-surrender rather than be taken into custody.
Comey posted a video to his Substack account hours after the indictment was announced. His attorney Patrick Fitzgerald issued a written statement saying the defense would 'contest these charges in the courtroom and look forward to vindicating Mr. Comey and the First Amendment.'
President Trump dismissed Pam Bondi as attorney general, citing frustration with her handling of Epstein files and the department's inability to secure convictions against his adversaries. Deputy AG Todd Blanche, Trump's former personal criminal defense attorney, was elevated to acting attorney general.
Federal judge dismisses the Virginia indictment after ruling that interim US Attorney Halligan was unlawfully appointed, voiding her charging authority.
Former National Security Adviser John Bolton is charged with willful retention of classified records related to his memoir.
New York Attorney General Letitia James is charged with mortgage fraud, the second prosecution of a former Trump adversary in two weeks.
A grand jury in the Eastern District of Virginia indicts Comey on false-statements and obstruction counts tied to 2020 Senate testimony, signed by interim US Attorney Lindsey Halligan.
Comey publishes an Instagram photo of seashells arranged to spell '8647' and deletes it hours later, saying he had not understood any violent interpretation.
Trump dismisses FBI Director Comey during the bureau's Russia investigation, triggering the appointment of Special Counsel Robert Mueller eight days later.
Discussed by: Lawfare contributors, former federal prosecutors quoted in Washington Post and NPR coverage
Defense moves to dismiss under Watts v. United States, the 1969 Supreme Court decision distinguishing 'true threats' from political hyperbole. The motion argues a deleted, ambiguous numeric image cannot meet the statute's intent requirement. A federal judge agrees the post falls within protected speech and dismisses before trial.
Discussed by: Trial attorneys interviewed by NPR and Reuters
The judge denies pretrial dismissal, finding the threat question is for jurors. Prosecutors argue Comey, a former FBI Director, knew exactly how '8647' would be read. The defense calls character witnesses and points to the rapid deletion. A North Carolina jury either acquits or fails to reach a verdict, ending the case without conviction.
Discussed by: Constitutional law commentators
A jury convicts on at least one count. Comey appeals on First Amendment grounds, drawing the case into the federal circuits and potentially the Supreme Court. The appeal becomes a vehicle for revisiting how 'true threat' doctrine applies to ambiguous symbolic speech online.
Discussed by: Former DOJ officials cited by Washington Post
Internal review or a procedural setback—similar to the appointment defect that sank the first case—leads prosecutors to dismiss the indictment without prejudice. The administration pivots to other prosecutions while preserving the option to refile.
Discussed by: Comey's defense attorney Patrick Fitzgerald and former federal prosecutors quoted by CNN
Fitzgerald argues the ten-year statute of limitations expired before any grand jury indicted Comey, and that a criminal information cannot substitute for an indictment. The Justice Department counters that filing an information to toll the limitations period is a widely recognized practice approved by multiple federal appeals courts. If the judge sides with Comey, the leak case ends at the trial level.
3 moments from history that rhyme with this story — and how they unfolded.
An eighteen-year-old draft protester at a Washington rally said that if forced to carry a rifle, 'the first man I want to get in my sights is L.B.J.' He was convicted under the same threats statute now used against Comey, 18 U.S.C. § 871.
The Supreme Court reversed the conviction in a per curiam opinion, ruling that political hyperbole is not a 'true threat' even when its words name the President.
Watts established the constitutional floor for federal threat prosecutions: the statute reaches only statements a reasonable person would understand as a serious expression of intent to harm. Courts have applied that test to social-media speech ever since.
Comey's defense will almost certainly cite Watts to argue that a deleted, ambiguous numeric image is constitutionally protected hyperbole. The case is the central legal precedent on which this prosecution turns.
The Justice Department indicted seven-term Senator Ted Stevens of Alaska on false-statement charges weeks before the 2008 election. A jury convicted him; he lost his Senate seat by 3,724 votes.
Months later, the new Attorney General moved to dismiss the conviction after discovering prosecutors had withheld exculpatory evidence. The judge appointed a special investigator who issued a 500-page report finding 'systematic' misconduct.
The Stevens collapse became the canonical example of a high-profile federal prosecution undone by errors inside the Justice Department itself. It prompted lasting reforms to discovery practice in federal criminal cases.
The first Comey case was dismissed not on the merits but because of a defect inside DOJ—an unlawful prosecutor appointment. Stevens illustrates how procedural failures at the department can sink even well-publicized indictments, and how the government typically responds by reorganizing leadership.
Federal prosecutors charged former presidential candidate John Edwards with using nearly $1 million in campaign donations to conceal an extramarital affair, applying campaign-finance law in a novel way.
After a six-week trial, a North Carolina jury acquitted Edwards on one count and hung on the others. The Justice Department declined to retry him.
The Edwards case stood as a warning against pursuing politically prominent defendants on contested legal theories. Prosecutors lost despite years of investigation and substantial evidence about the underlying conduct.
Like Edwards, the Comey threats case asks a North Carolina jury to apply federal law to facts that don't fit its usual contours. Edwards shows that aggressive charging theories often fail at trial even when the defendant's conduct is unflattering.