The DOJ's Comey Campaign Is Costing It Prosecutors
The Justice Department’s sustained effort to criminally prosecute former FBI Director James Comey has now produced a measurable institutional cost: more than a half-dozen prosecutors have been demoted or pushed out of the U.S. Attorney’s Office for the Eastern District of Virginia, others are weighing departures, and at least one major case has been disrupted. The campaign against Comey, spanning two separate indictments across nine months, has accomplished less legally than it has damaged the office pursuing it.
The first prosecution collapsed on procedural grounds. In September 2025, a grand jury in Virginia indicted Comey on charges of making false statements to Congress and obstructing a Senate Judiciary Committee proceeding, with the indictment filed the day before a five-year statute of limitations expired. The timing was not incidental. Trump had removed the sitting U.S. Attorney, Erik Siebert, who had opposed bringing charges, and installed Lindsey Halligan — a political loyalist with no prosecutorial experience — who secured the indictment within days of her appointment. On November 24, 2025, Judge Cameron McGowan Currie dismissed the case, ruling that Halligan had never been lawfully appointed. The dismissal was without prejudice, but analysts noted that the expired statute of limitations effectively foreclosed any path to refiling the original charges.
The DOJ appealed. It also moved on.
On April 28, 2026, a federal grand jury in the Eastern District of North Carolina indicted Comey on two counts arising from a May 2025 Instagram post — a photograph of beach seashells arranged to read “86 47.” The government’s theory is that the image constitutes a threat against the president, in violation of 18 U.S.C. § 871 and § 875(c). Acting Attorney General Todd Blanche presented the prosecution at a press conference as straightforward: “You are not allowed to threaten the president of the United States of America.” Comey surrendered the following day, did not enter a plea, and was released on his own recognizance. His attorneys announced plans to file motions alleging selective and vindictive prosecution.
The legal case is weak. A 2023 Supreme Court ruling established that the government must prove the defendant had subjective understanding of the threatening nature of his communication — not merely that a reasonable person could interpret it as threatening. Comey deleted the post the same day it was published, apologized publicly, and stated he was unaware of any violent connotation behind the number 86, a word whose most common usage derives from service-industry slang for removing or canceling. The Merriam-Webster definition supports that reading. Comey’s defense team — which includes Patrick Fitzgerald and Michael Dreeben — will have a credible First Amendment argument from the opening motion.
What the prosecution does not have is institutional credibility. Former special counsel Jack Smith assessed the first case plainly when it fell apart: “The apolitical prosecutors who analyzed this said there wasn’t a case, and so they brought somebody in who had never been a criminal prosecutor on day’s notice to secure an indictment a day before the statute of limitations ended. That just reeks of lack of process.” The second prosecution carries the same odor. The EDVA departures confirm that career prosecutors are registering their judgment with their feet.
For a press freedom audience, the Comey case has always been about more than Comey. The prosecutorial machinery deployed here — rushed appointments, expired limitations periods, charges premised on the meaning of a social media post — is the same machinery available to any administration that decides a journalist, editor, or source has posted something inconvenient. The First Amendment test being litigated in the Eastern District of North Carolina will define the legal terrain. The institutional damage at EDVA is already done.
The DOJ is now appealing a dismissal, pursuing a social media case with a high subjective-intent bar, and absorbing prosecutor departures across the office that handled the first prosecution. None of that is what winning looks like.