Turmoil at Office Tasked With Prosecuting James Comey Could Mean Trouble Ahead for Push To Convict Him

The resignation of the prosecutor in charge of the criminal incitement case against the former director of the FBI, James Comey, could signal a rocky road ahead for the Department of Justice. Matthew Petracca was recently hired as an assistant U.S. attorney in the Eastern District of North Carolina. His signature appears on the indictment against Mr. Comey, which was handed up by a Tar Heel grand jury in April.However, in a court filing on Monday the United States attorney for the Eastern District of North Carolina, Ellis Boyle, informed the presiding judge, Louise Flanagan, that the new leader of the prosecution is a new assistant U.S. attorney, Timothy Severo. While personnel reshuffling is not unheard of within the DOJ, the rapid-fire replacement of the relatively untested Mr. Petracca suggests that Mr. Boyle wanted a more experienced lawyer to take the lead. The two-count bill of charges centers on an Instagram post made by Mr. Comey that featured seashells arranged on a beach in a formation that spelled out “86 47.” The former of those numbers has long been kitchen slang for “nix” or “throwaway.” The second number refers to Mr. Trump’s presidency. The government argues that a reasonable person would interpret the image as “a serious expression of an intent to do harm to the President of the United States.” Mr. Comey subsequently deleted the post and has insisted that he did not intend it as a threat. Mr. Comey has already secured a delay in the trial to October from July, a request that the DOJ did not oppose. That request, though, was handled not by Messrs. Petracca or Severo, but by a third prosecutor — First Assistant U.S. Attorney Phil Aubart. While the government did not explain its acquiescence to Mr. Comey’s request for a delay, a desire to put more personnel in place in advance of opening statements could be behind that demurral.Mr. Comey has indicated that he will move to dismiss the case against him as “selective and vindictive.” That is a high bar for a defendant to clear, but if Mr. Comey can clear it the remedy is automatic dismissal. A baleful sign for the government’s incitement case comes on the heels of an unrelated ruling in Washington, D.C. A federal judge, Randolph Moss, ruled on Monday that protesters criticizing Mr. Trump near the Capitol could not be forced to take down a flag reading “8647” — the same sequence of numbers for which Mr. Comey faces the possibility of prison.Judge Moss wrote that “not every use of the slang phrase ‘86’ constitutes a threat of violence; to the contrary, it is most often used to mean that an item is no longer available or that someone or something should be removed, ejected, or thrown out. But it can, in some contexts, mean ‘to kill.’”The Supreme Court has held that “True threats of violence, everyone agrees, lie outside the bounds of the First Amendment’s protection.” The First Amendment, though, offers ironclad protection against “jests, hyperbole, or other statements that when taken in context do not convey a real possibility that violence will follow.” Mr. Comey is likely to swiftly move to dismiss the case on First Amendment grounds. The issue of who would prosecute Mr. Comey has bedeviled the Justice Department since the Trump administration indicted him for the first time in September 2025. Prior to that indictment the lead prosecutor in the Eastern District of Virginia, Erick Siebert — along with much of his staff — was ousted over his reluctance to bring charges against Mr. Comey and New York’s attorney general.With respect to Mr. Siebert’s departure, Mr. Trump declared that “He didn’t quit, I fired him!” Five days later, Mr. Siebert’s replacement, Lindsey Halligan, indicted Mr. Comey for lying to Congress and Ms. James for bank fraud. Those charges followed a social media post from Mr. Trump: “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done. We can’t delay any longer, it’s killing our reputation and credibility.”That message was addressed to “Pam,” meaning the former attorney general, Pam Bondi. Ms. Bondi’s appointment of Ms. Halligan to replace Mr. Siebert proved to be the undoing of both cases as a federal judge from South Carolina, Cameron McGowan Currie, ruled that Ms. Halligan, bereft of confirmation by the Senate, was unlawfully appointed to her post. Ms. Halligan, who has never prosecuted a felony before, subsequently left the Justice Department.Judge Currie not only disqualified Ms. Halligan — she also dismissed the charges against Mr. Comey and Ms. James. The DOJ convened two more grand juries to indict Ms. James, but neither agreed to hand up charges. The Justice Department has appealed the dismissals to the Fourth Circuit Court of Appeals, which has yet to rule on the case.

Turmoil at Office Tasked With Prosecuting James Comey Could Mean Trouble Ahead for Push To Convict Him

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