James Comey Indicted Again: Legal Case Explained [Audio]

HOST

From DailyListen, I'm Alex. A federal grand jury in North Carolina just indicted former FBI Director James Comey for a second time. This one's over a photo of seashells on a beach arranged to spell out "86 47." Prosecutors call it a threat against President Trump, the 47th president. It comes days after Trump pushed his attorney general to act, and just months after a judge tossed the first indictment. We're joined by Catherine, our legal analyst, to break down the charges, the court, and why this keeps happening. Catherine, the court ruled Comey knowingly made a threat to the president's life. Walk us through that indictment.

CATHERINE

The federal grand jury in the Eastern District of North Carolina indicted James Brien Comey Jr. on Tuesday. They charged him with two counts: knowingly and willfully threatening to take the life of or inflict bodily harm on the President, and transmitting that threat in interstate commerce. This stems from his Instagram post on May 15, 2025—a photo of seashells on a North Carolina beach forming "86 47." Prosecutors say a reasonable person familiar with the context would see "86," old diner slang for "get rid of" or even kill, plus "47" nodding to Trump as the 47th president, as a serious intent to harm. Acting Attorney General Todd Blanche announced it, calling it a direct threat. This is federal court, not state, under 18 U.S.C. sections that cover presidential threats. The first indictment last September was separate—over 2020 testimony where Comey allegedly lied to Congress about authorizing FBI Deputy Director Andrew McCabe to leak info on a probe, backed by a 2018 Justice Department inspector general report. That earlier case got dismissed in November 2025 by Senior District Judge Cameron McGowan Currie, who ruled interim U.S. Attorney Lindsey Halligan was unlawfully appointed under 28 U.S.C. Dismissed without prejudice, so they refiled here.

HOST

Hold on—that "86 47" as a threat sounds like a stretch from beach shells. Comey called it a "cool shell formation." How do prosecutors bridge to "serious intent to harm"?

CATHERINE

Prosecutors cite the exact standard from Elonis v. United States, the 2015 Supreme Court case where Chief Justice John G. Roberts Jr. wrote that a threat needs proof of a mental state where the defendant knows a reasonable recipient would see it as a serious expression of intent to harm. They claim Comey's post fits because "86" means eject or kill in slang—think restaurant lingo for tossing out food, or mob talk for murder—and paired with "47" for Trump's presidency number, posted publicly on Instagram, it crosses the line. Donald Trump Jr. blasted it as "calling for my dad to be murdered." Comey, a fierce Trump critic since Trump fired him in 2017 over the Russia probe, had motive in their view. But here's the rub: the Supreme Court in Elonis explicitly rejected a negligence standard, demanding prosecutors prove Comey subjectively meant it that way. Legal watchers, like those at Lawfare, say this indictment leans on the old "reasonable person" test Roberts tossed out. If Comey fights it, that precedent could gut the case fast—distinguishing coded posts from outright threats.

HOST

So this federal North Carolina grand jury is betting they can prove his mindset, even after the Supreme Court raised the bar.

CATHERINE

Grand juries offer targets like Comey almost no protections. No right to counsel inside the room, no cross-examination, and courts rarely toss cases for flaws, as the Harvard Law Review notes in "Restoring Legitimacy: The Grand Jury as the Prosecutor's Administrative Agency." Prosecutors control the show—90% indict when they want. This North Carolina panel, unlike the prior Virginia one dismissed by Judge Currie, used a lawfully appointed U.S. Attorney. It's the Justice Department's renewed push under Trump, who just days ago urged action against Comey. Ties back to 2016: Comey led the FBI probe into Russian election meddling and Trump campaign links, then announced the Clinton email review days before her loss—she blamed him for her defeat. Trump fired him May 9, 2017. Comey hit back with a book painting Trump as a mob boss demanding loyalty. First indictment in September 2025 revived 2018 inspector general findings: McCabe told investigators Comey okayed leaking probe details to the media, despite Comey's Senate claim he didn't. That got axed on appointment grounds. Now "86 47" revives the feud in federal court.

HOST

The first charges were about lying to Congress on leaks from years ago. This new one's tied to a 2025 Instagram post. How connected are these two indictments really?

CATHERINE

Not directly connected in facts, but both signal the Trump Justice Department's campaign against Comey as a Trump foe. The prior September 2025 indictment hit two counts: lying to and obstructing Congress over his 2020 testimony. He denied authorizing leaks on an FBI probe—prosecutors pointed to the 2018 inspector general report where McCabe said Comey greenlit it. Dismissed November 24, 2025, for Halligan's invalid appointment—same judge axed Letitia James's case too. This second one stands alone on the shells: on or about May 15, 2025, Comey posted the photo. Administration officials announced a probe the next day, May 16. It sat until now, post-Trump's recent nudge. Both are federal, both from DOJ under Trump, both target Comey's post-FBI criticisms. Critics like the New York City Bar Association question if it's retaliation—Comey spoke out after his firing, like at Harvard in 2020 slamming Trump. Prosecutors frame it as accountability for a director who bent rules on Clinton emails and Russia.

HOST

Judge Currie dismissed without prejudice last November. That let them refile here in North Carolina. What's the difference in these courts that might stick this time?

CATHERINE

Key difference is the U.S. Attorney's appointment. Judge Cameron McGowan Currie in South Carolina—no, Eastern District of Virginia for the first—ruled Lindsey Halligan's interim role violated 28 U.S.C. on Appointments Clause grounds. Dismissed Comey's and James's indictments without prejudice, meaning refiling's allowed if done right. North Carolina's Eastern District grand jury used a properly appointed acting U.S. Attorney, dodging that hurdle. It's still federal court, under statutes like 18 U.S.C. § 871 for presidential threats. Grand jury secrecy helps prosecutors—they present one-sided evidence. As House.gov's "Constitutional Rights and the Grand Jury" explains, witnesses get no lawyer inside, and judges fix few errors. Trump DOJ timed this post his public call to act, echoing his 2017 firing. Comey, out since year four of his 10-year term, faces two criminal counts here. If arraigned, he'll argue First Amendment—shells as art, not threat—but Elonis sets a high bar for prosecutors to prove his willful intent.

HOST

Trump fired Comey back in 2017 amid the Russia probe. Hillary Clinton blamed Comey for her loss. Does this indictment pull all that old history into play?

CATHERINE

Prosecutors weave it in for context on motive. Comey ran the FBI's 2016 probe into Russian meddling and Trump-Moscow ties—same year he reopened Clinton emails publicly, 11 days pre-election. She lost, blamed him ever since. Trump canned him May 9, 2017, citing the Russia handling per his letter. Comey then wrote "A Higher Loyalty," quoting Trump demanding "loyalty" like a mob boss—fueled his critic status. The 2018 inspector general report slammed Comey's leak authorization to McCabe, setting up the first indictment. Now "86 47" prosecutors say his Trump hatred shows willful threat—posting amid open feud, where "86" slang plus "47" screams "get rid of Trump." But Comey downplayed it as beach fun. Federal rules demand proving he knew it'd be seen as serious harm intent, per Roberts in Elonis. Without emails or witnesses proving mindset, it risks dismissal like the last. DOJ's betting the grand jury's nod holds, unlike Virginia's flawed start.

HOST

We've got this Supreme Court precedent from 2015 hanging over it. Roberts said threats need more than just how it looks. Could that kill the charges outright?

CATHERINE

Elonis v. United States sets the binding precedent. Chief Justice Roberts wrote for the 8-1 majority: true threats aren't protected speech, but conviction demands proof the defendant acted with intent to issue a threat—not just that a reasonable person would take it that way. Pre-Elonis, prosecutors won on negligence; post-2015, they must show subjective knowledge of serious harm perception. This Comey indictment quotes "reasonable recipient" language straight from the old standard Roberts rejected. Sources like The Washington Post flag it could upend the case—shells as "coded" speech, like Elonis's violent rap lyrics, might not cross into unprotected territory. No direct evidence Comey meant harm; he called it shells. If he moves to dismiss, the district court in North Carolina must apply Elonis strictly. Persuasive authority from Lawfare's Benjamin Wittes backs this: DOJ overreaches on symbols. Trump-era DOJ cites it anyway, testing post-Trump high court limits.

HOST

North Carolina federal court for shells found there, prior one in Virginia. Letitia James's case got tossed too. Is there a pattern in picking venues or appointments?

CATHERINE

Pattern screams DOJ strategy under Trump. First round: Eastern District of Virginia indicted Comey September 2025 on leak lies, James October 2025 on unrelated Trump threats. Judge Currie tossed both November 24 for Halligan's unlawful appointment—no Senate confirmation as required by 28 U.S.C. Without prejudice let refiles. North Carolina Eastern District grabs the "86 47" since shells were on its beach—venue fits crime location. A grand jury there indicted Comey anew this week, with Todd Blanche greenlighting. James's refile failed twice in a week—grand jury declined Thursday. PBS notes it as DOJ stumbles. Critics tie to Trump's call for action days ago. Grand juries, per Suffolk.edu's "Grand Jury Issues," act as prosecutor tools—95% indict rate. Venue shopping avoids tough judges; North Carolina's friendlier post-fix. Comey faces self-surrender soon, per KATV.

HOST

DOJ's expanding probes like this against critics—Comey, James. But grand juries don't always play ball, as with James.

CATHERINE

Exactly—grand juries aren't rubber stamps always. James dodged re-indictment twice in a week; jurors saw no crime. Comey's stuck because shells link directly to North Carolina—prosecutors flew solo, no leaks suggesting internal doubt. Harvard Law Review calls grand juries "prosecutor's administrative agency"—few checks, but voters oust weak DAs rarely, like Timothy McGinty after Tamir Rice or Anita Alvarez post-Laquan McDonald. BLM activism flipped those. Here, federal, so no election pressure. Trump DOJ pushes despite Elonis risk, eyeing Comey's history: Clinton email call, Russia probe, post-fire barbs. If convicted, max 10 years per count. But New York City Bar Association flags politicization—second bite after dismissal. NPR's Steve Inskeep grilled Lawfare's Wittes on it: is "86 47" speech or threat? Wittes leans protected.

HOST

Comey goes from FBI head to twice-indicted. First on leaks, now shells. What's next—does he fight on First Amendment?

CATHERINE

Arraignment first in North Carolina federal court—expect Comey to self-surrender, plead not guilty. Motion to dismiss on Elonis grounds hits early: no proof of willful threat intent, just ambiguous shells he called art. Prosecutors counter with context—his Trump attacks since 2017 firing, "86" slang history from 1930s eateries to mob films, "47" as Trump's number. DOJ sources like Fox say it's clear. But Wikipedia's "Prosecution of James Comey" tracks analyst doubts; NYT calls it Trump admin securing payback. No bail details yet, but ex-directors get leniency. Trial could drag—discovery on his mindset via Instagram data, witnesses. If judge buys "reasonable recipient," it survives; Roberts precedent says no. Appeals loom to Fourth Circuit, maybe Supreme Court redux. Meanwhile, first case could refile too if DOJ pushes leaks again.

HOST

This all ramps up right after Trump's push. Ties back to 2016 election fights. Why does it matter beyond the two of them?

CATHERINE

Sets precedent on online speech threats versus politics. If Comey walks on Elonis, it shields coded posts—vital amid Trump 47 presidency clashes. DOJ flexed on foe who probed Russia, leaked per IG, criticized post-fire. Signals to critics: post carefully. But grand jury flaws, per Levin Center's "US v. Comey," erode trust—secret, prosecutor-led. Voters rarely boot feds, unlike McGinty or Alvarez locally. Iowa Public Radio breaks it: second indictment revives leak saga plus shells, testing free speech post-January 6 vibe. Trump won despite Comey-era probes; now flips script. For everyday folks, clarifies what's a threat online—Instagram art okay unless proven willful harm. NYC Bar warns of DOJ weaponization. Outcome shapes 2026 probes.

HOST

Catherine, sharp breakdown as always on why this second federal indictment landed—and the hurdles ahead. Folks, that's the line on Comey's "86 47" shells case from a North Carolina grand jury. Check DailyListen for updates. I'm Alex. Thanks for listening to DailyListen.