Legal Experts Defend Comey Indictment Against Early Skepticism

Legal experts are rebutting skepticism about the indictment of former FBI Director James Comey. They argue the Department of Justice would not pursue the case without satisfying key legal standards.

"Lots of folks are saying the case is going nowhere, but way too early to reach that conclusion," said John Fishwick, a former Democratic U.S. attorney in Virginia during the Obama administration. He cautioned against writing off the case too soon.

Prosecutors in the Eastern District of North Carolina secured the indictment last month. It charges Comey, a longtime adversary of President Trump, with threatening the president and sending interstate communications containing threats. The allegations center on an Instagram photo Comey posted last year showing seashells arranged as "8647."

Free speech advocates and left-leaning critics have condemned the indictment. They accuse the DOJ of targeting protected speech to prosecute one of Trump's chief political opponents. Trump fired Comey as FBI director in 2017. Comey has criticized the president publicly and earned money from his anti-Trump book. Trump has called Comey "guilty as hell" on social media and said he deserves criminal charges.

"Comey is out for revenge against Trump and has publicly gone after Trump separately from the seashells," Fishwick said. He noted that Trump also said publicly he saw the message as a threat.

Prosecutors must show Comey's intent and prove the message was a "true threat." That standard has sparked questions about the case's viability, particularly amid recent threats against Trump, who has faced three alleged assassination attempts.

"You prove intent like you always prove intent," acting Attorney General Todd Blanche said on NBC's "Meet the Press" this weekend. "You prove intent with witnesses. You prove intent with documents, with materials. ... This is not just about a single Instagram post. This is about a body of evidence that the grand jury collected over the series of about 11 months."

Chad Mizelle, former DOJ chief of staff, told Fox News Digital the bar for convicting Comey of threatening the president is high. Still, he said the indictment points to solid underlying evidence.

"I don't think the department would have secured the indictment without concrete evidence that Comey did knowingly and willfully threaten the president of the United States," Mizelle said.

Mizelle said evidence might include nonpublic text messages or emails. "What was Comey's intent when he said it?" he asked. "I suspect DOJ has evidence of that, and I'll wager it's not favorable to Comey."

Prosecutors interpret "86" as slang for getting rid of someone, paired with "47" to reference Trump as the 47th president. The post amounted to a threat, they allege.

Comey served as a federal prosecutor and deputy attorney general before leading the FBI. "Comey, more than any American, knows not to make threats and what a threat looks like," Fishwick said.

Sen. Josh Hawley, R-Mo., told Fox News: "This is a very smart guy. He knows what he’s doing. He’s nobody’s fool. … He knew exactly what he was doing, but hey he’s going to have his day in court."

The DOJ obtained the indictment from a grand jury days after a third alleged assassination attempt on Trump at the White House Correspondents' Association dinner. Blanche has emphasized that prosecuting presidential threats is a priority, no matter the source. Fishwick said political violence would matter if the case reaches trial.

"As background to any trial, jurors in North Carolina will be aware of all the political threats in this country and know that something must be done about it," Fishwick said.

George Washington University law professor Jonathan Turley voiced First Amendment worries. He said a case based only on the seashells image "is clearly protected speech" without more evidence and could hit legal roadblocks.

The Foundation for Individual Rights and Expression argued "86" might mean impeachment. It said the charges ignore Supreme Court precedent on "true threats."

"The idea that Comey's picture of seashells conveyed a serious intent to harm the president is ridiculous," the group wrote on social media. "The administration should abandon this transparent and unconstitutional attempt to punish a critic."

Comey deleted the post soon after, saying he did not realize it looked ominous. After the indictment, he said he was "still innocent."

"I’m still not afraid, and I still believe in the independent federal judiciary, so let’s go," Comey said.

Judicial Watch President Tom Fitton accused left-leaning media of defending Comey under the guise of free speech. "You don’t have the right to advocate for the killing of the president," Fitton said.

Comey's arraignment is scheduled for May 11 in Greenville. His lawyer did not comment.