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Legal experts are pushing back on skepticism surrounding the indictment of former FBI Director James Comey, arguing the Department of Justice would not have brought the case without meeting key legal thresholds.
“Lots of folks are saying the case is going nowhere, but, way too early to reach that conclusion,” former Democratic U.S. Attorney John Fishwick, who served in Virginia during the Obama administration, said, cautioning against prematurely dismissing the case.
The indictment, brought last month in the Eastern District of North Carolina, alleged Comey, a longtime Trump nemesis, threatened the president and delivered interstate communications containing threats when he posted a photo on Instagram of seashells reading “8647” last year.
Free speech advocates and leftist critics pushed back against the indictment, accusing the DOJ of infringing on protected speech in the name of prosecuting one of Trump’s top political rivals. Comey, whom Trump fired as FBI director in 2017, has been outspoken against the president and profited off sales from his anti-Trump book, while Trump has said Comey is “guilty as hell” on social media and that he should face criminal charges.
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“Comey is out for revenge against Trump and has publicly gone after Trump separately from the seashells,” Fishwick said, adding that Trump also publicly said he perceived the message as a threat.
Prosecutors must prove Comey’s intent and that the message constituted a “true threat,” a high legal bar that has fueled questions about whether the case can succeed, especially in the recent threat environment where Trump has now faced three alleged assassination attempts.
“You prove intent like you always prove intent,” acting Attorney General Todd Blanche said on “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 legal standard for convicting Comey for threatening the president was high but that the indictment suggested there was 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 noted evidence could take many forms, such as nonpublic text messages or emails.
“What was Comey’s intent when he said it?” Mizelle asked. “I suspect DOJ has evidence of that, and I’ll wager it’s not favorable to Comey.”
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The term “86” has been used as slang to get rid of someone or something, often in restaurants for an unavailable item or refused customer. Prosecutors alleged that, paired with “47” — a reference to Donald Trump as the 47th president — Comey’s post amounted to a threat.
Before serving as head of the FBI, Comey was a federal prosecutor and deputy attorney general for the Department of Justice.
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 secured the indictment from a grand jury days after a third alleged assassination attempt on Trump at the annual White House Correspondents’ Association dinner, a point Blanche has drilled down on as evidence that prosecuting threats to the president, regardless of who made them, is a top priority. Fishwick said the political violence would be relevant if the case makes it to 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 raised First Amendment concerns, saying if the case rested solely on the image of seashells forming “8647,” it could face significant legal hurdles, arguing the image “is clearly protected speech” absent additional evidence.
The Foundation for Individual Rights and Expression said “86” could actually mean impeachment and that the charges defied Supreme Court precedent that established the standard for a “true threat.”
“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.”
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Comey had quickly deleted the post, saying at the time that he did not realize that he had shared something 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 “the left media [of] rushing to the defense of James Comey, pretending it’s about free speech.”
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“You don’t have the right to advocate for the killing of the president,” Fitton said.
Comey’s arraignment is set for May 11 in Greenville. Comey’s lawyer did not comment for this story.
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