The Justice Department is evaluating a third federal indictment against former FBI Director James Comey, according to sources reported by The Daily Beast [1]. The potential new charges would follow two prior federal prosecutions of Comey during President Trump's second term, both of which have drawn scrutiny over their legal basis and political context [1][2].
Comey's second indictment, returned by a North Carolina grand jury in April 2026, charged him with two counts of making threats against the president [2]. The charges stemmed from an Instagram post in which Comey displayed seashells arranged to spell "86 47," a phrase the DOJ argued constituted a criminal threat against President Trump [2]. Comey and his defense maintained the post was not a threat but an expression of political sentiment, placing the prosecution squarely at the intersection of 18 U.S.C. threat statutes and First Amendment protections [2]. His attorney, Lindsey Halligan, has been among those challenging the government's characterization of the post [1].
The first indictment against Comey, which alleged obstruction of a congressional investigation, was dismissed in November 2025 after a federal judge ruled that the U.S. attorney who brought the case had been illegally appointed, a defect that voided the charging instrument entirely [2]. Deputy Attorney General Todd Blanche has been identified in connection with the department's ongoing posture toward Comey [1]. The sequence of prosecutions, two indictments in less than a year and a third now under consideration, has drawn criticism from civil liberties advocates and defense lawyers who argue the pattern reflects selective enforcement against a political adversary of the current administration [1][2].
No charges have been filed in connection with the prospective third indictment, and the timeline for any grand jury presentment remains unclear [1]. Comey has not entered a plea in the second case, which is proceeding in the federal district in North Carolina where the grand jury convened [2]. The outcome of the "86 47" prosecution is likely to turn on whether a jury or appellate court accepts the government's interpretation of the Instagram post as a "true threat" under the Supreme Court's framework in Counterman v. Colorado, decided in 2023. Defense counsel is expected to contest venue, intent, and the constitutional limits of the threat statutes if a third case is filed [1][2].